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THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


A  TREATISE 


EQUITY  JURISPRUDENCE, 


AS    ADMINISTERED    IN 


THE  UNITED  STATES  OF  AMERICA; 

ADAPTED  FOE  ALL  THE  STATES, 


AND 


TO  THE  UNION  OF  LEGAL  AND  EQUITABLE  REMEDIES 

UNDER  THE  REFORMED  PROCEDURE 

By  JOHN  NORTON  POMEROY,  LL.D. 


FOURTH  EDITION 

BY 

JOHN  NORTON  POMEROY,  Jr.,  A.M.,  LL.B. 

Professor  of  Law  in  the  University  of  Illinois 

IN  FOUR  VOLUMES 


VOLUME  I 


BANCROFT-WHITNEY   COMPANY 

SAN  FRANCISCO 

THE  LAWYERS  CO-OPERATIVE  PUBLISHING  COMPANY 
ROCHESTER,   N.  T. 

1918 


Entered  according  to  act  of  Congress  in  the  years  1881, 

1882,  and  1883,  by 

JOHN  NORTON  POMEROY, 

In  the  office  of  the  Librarian  of  Congress,  at  Washington, 


Entered  according  to  act  of  Congress  in  the  year  1892,  by 

ANNIE  R.  POMEROY, 
In  the  office  of  the  Librarian  of  Congress,  at  Washington. 


Copyright,  1905, 

By  CARTER  P.  POMEROY,  HARRIET  H.  THOMPSON, 

AND  JOHN  NORTON  POMEROY,  Jr. 


Copyright,  1918, 

By  HARRIET  H.  THOMPSON,  JOHN  NORTON  POMETJOY,  Jr., 

CHRISTINE  M.  BROOKE,  and  HARRIET  H.  POMEROY. 


19(8. 


San  Francisco 

The  Filmer  Brothers  Electrotype  Company 

Typographers  and  Stereotypers 


TO 

STEPHEN    J.    FIELD,    LL.D.. 

ONE  OF  THE  ASSOCIATE  JUSTICES  OF  THE  SUPREME  COUET 
OF    THE   UNITED    STATES: 

NOT  ONLY  AS  A  TRIBUTE  TO  HIS  EMINENT  PUBLIC  SERVICES   IN  THE  MOST  AUGUST 

TRIBUNAL  OF   ANY    MODERN    NATION,   BUT   ALSO   AS    AN    ACKNOWLr 

EDGMENT  OF   HIS   PRIVATE   FRIENDSHIP,   AND   OP  THE 

author's  ESTEEM  AND  RESPECT, 

THIS    WORK  IS  DEDICATED. 


B48217 


PEEFACE  TO  THE  FOUETH  EDITION. 


In  preparing  this  edition,  the  editor  has  found  no  occasion  to 
depart  from  the  plan  and  method  of  the  third  edition,  save  in  one 
particular.  A  consolidated  Index  and  Table  of  Cases  to  the  original 
work  and  the  editor's  supplement,  now  form  the  final  volume  of 
the  series.  This  has  necessitated  the  inclusion  of  the  author's  brief 
Part  Fourth  (Equitable  Remedies)  in  the  first  of  the  editor's  sup- 
plementary volumes, — Vol.  IV.  of  the  series.  It  is  believed  that 
both  of  these  changes  will  serve  the  reader's  convenience.  No  addi- 
tions have  been  made  to  the  author's  text.  The  additions  to  the 
editor's  notes,  however,  are  greater  than  in  either  of  the  previous 
editions,  and  have  increased  the  size  of  these  three  volumes  by  nearlv 
six  hundred  pages.  As  the  editor  has  obtained  his  material  directly 
from  the  original  sources,  by  the  laborious  process  of  reading  the 
reports  of  the  last  thirteen  years  from  end  to  end,  he  trusts  that 
no  Equity  case  of  general  interest,  within  that  period,  has  escaped 
attention.  It  is  hoped  that  this  edition,  the  cumulative  result  of 
twenty-nine  years  of  editorial  research,  may  meet  from  the  pro- 
fession the  same  cordial  reception  that  hsis  been  accorded  to  its 
predecessors.  J.  N.  P.,  Jr. 

Beekeley,  Cal,,  September,  1918. 

(V) 


PEEFACE  TO  THE  THIRD  EDITION. 


An  edition  of  a  standard  text-book  in  double  the  number  of 
volumes  of  the  first  edition  appears  to  call  for  some  explanation, 
if  not  apology.  The  motives  which  induced  the  present  editor  to 
add  to  his  father's  work,  by  way  of  an  attempt  to  carry  out  and 
complete  the  original  scheme  of  that  work,  the  two  volumes  on 
"Equitable  Remedies,"  are  stated  in  the  preface  to  those  volumes. 
It  was  found,  when  the  editing  of  the  remaining  parts  of  the  work 
was  taken  up,  that  an  adequate  statement  of  the  twelve  years' 
growth  of  their  many  topics  would  swell  the  three  volumes,  already 
bulky,  to  an  inconvenient  size;  and  it  further  appeared  that  in  a 
large  range  of  these  topics  a  treatment  less  general  and  elementary 
than  the  author.'s  limits  of  space  allowed  would  more  truly  repre- 
sent their  present  relative  importance.  The  editor  has  therefore, 
— while  supplying  all  portions  of  the  book  with  citations  much 
more  numerous  than  those  added  in  the  second  edition, — under- 
taken to  annotate  at  considerable  length,  drawing  upon  the  older 
as  well  as  the  latest  cases,  such  subjects  as,  e.  g.  the  Equity  Juris- 
diction of  the  United  States  Couiis ;  many  topics  in  the  chapters 
on  Notice,  Priorities,  and  Bona  Fide  Purchase;  and  many  in  the 
law  of  Trusts.  The  subject  of  the  Jurisdiction  to  avoid  Multi- 
plicity of  Suits,  which  the  author  was  the  first  to  treat  in  a  man- 
ner and  to  an  extent  adequate  to  its  intrinsic  importance,  has  had 
an  astonishing  growth  under  the  impetus  given  by  his  well  known 
chapter;  in  presenting,  in  some  detail,  the  result  of  this  growth, 
the  editor  has  ventured  to  add  two  paragraphs  (§§  25114,  251%) 
to  the  text,  for  the  purpose  of  emphasizing  and  illustrating  an 
important  limiting  principle,  which  had,  indeed,  been  recognized 
by  the  author,  but  has  only  come  into  prominence  in  recent  years. 
With  this  one  exception  no  new  paragraphs  have  been  interpolated ; 
the  author's  text  and  notes  have  been  left  as  they  were  written, 
the  editor  believing  that  the  peculiarly  authoritative  character  con- 
ceded by  the  courts  to  that  text  required  that  no  chance  should 
be  afforded  of  confusing  the  author's  language  with  his  own.  The 
results  of  the  editor's  labor — which  has  included  a  careful  re- 

(vii) 


viii  Preface  to  the  Third  Edition. 

examination  of  all  the  cases  added  in  the  second  edition, — have, 
therefore,  been  cast  into  a  series  of  separate  notes,  distinguished 
from  the  author's  notes  by  reference  letters  instead  of  numerals. 
The  reader's  attention  has  been  called  to  several  thousands  of  eases 
citing  or  quoting  the  text ;  from  the  number  of  these  some  notion 
may  be  obtained  of  the  extent  to  which  the  author's  statements 
have  been  accepted  as  authority. 

An  editorial  task  involving  the  reading  of  tens  of  thousands  of 
cases  can  rarely  be  accomplished  single  handed.  The  editor  desires 
to  acknowledge  his  indebtedness  to  his  painstaking  assistants,  Mr. 
F.  W.  Doan,  now  of  Tucson,  Ariz.,  and  Mr.  E.  S.  Page,  of  Oak- 
land, Cal.  The  chapter  on  Trusts  (excepting  Charitable  Trusts) 
was  for  the  most  part  annotated  by  Mr.  Doan ;  as  to  the  rest  of  the 
editorial  notes,  it  may  be  said  in  general  that  those  in  Vol.  Ill 
are  chiefly  Mr.  Page's  work,  those  in  Vols.  I  and  II,  and  all  those 
Btating  the  results  of  English  cases,  are  chiefly  the  editor's. 

Pomeroy's  Equity  Jurisprudence  was  written  at  a  fortunate 
time, — a  time  almost  coincident  with  the  completion  of  the  labors 
of  Jessel  and  others  of  that  brilliant  group  of  English  Chancery 
Judges  of  the  seventh  and  eighth  decades  of  the  last  century,  whose 
restatements  of  the  doctrines  and  principles  of  Equity  amounted 
almost  to  a  re-creation.  It  is  hardly  too  much  to  say,  that  the 
author  accomplished  the  same  result  for  large  parts  of  the  equity 
jurisprudence  in  this  country.  Few  law  boote  in  any  fleld  have 
been  relied  on  by  American  Courts  in  the  last  twenty  years  with 
anything  like  the  same  frequency.  The  instances  are  rare  in 
which  the  author's  conclusions  on  debatable  questions  have  not  been 
accepted,  almost  without  dispute.  The  hope  earnestly  expressed 
in  his  preface,  that  his  work  "may  maintain  the  equity  jurispru- 
dence in  its  true  position  as  a  constituent  part  of  the  municipal 
law ' '  appears  to  have  been  abundantly  fulfilled. 

J.  N.  P.,  Jr. 

San  Fkancisco,  March,  1905. 


PEEFACE  TO  THE  SECOND  EDITION. 


The  author  of  this  treatise  departed  this  life  so  soon  after  the 
publication  of  the  first  edition,  that  he  had  no  opportunity  to  do 
anj^thing  in  the  way  of  preparation  for  this  edition.  By  a  testa- 
mentary request,  he  charged  that  work  upon  the  present  editors. 
This  duty  the  editors,  with  filial  reverence,  have  performed  to  the 
best  of  their  ability,  and  now  submit  the  result  of  their  labors  to 
the  profession. 

In  the  preparation  of  this  edition,  a  careful  examination  has 
been  made  of  all  the  cases — English  and  American — which  have 
appeared  since  the  publication  of  the  first  edition,  involving  matters 
falling  within  the  scope  of  this  work.  These  cases  are  upwards  of 
eight  thousand  in  number.  In  gathering  this  large  mass  of  mate- 
rial, the  editors  have  not,  in  any  instance,  made  use  of  the  often 
fallible  assistance  of  the  digests,  but  have  gone  directly  to  the 
reports.  A  considerable  proportion  of  the  material  thus  gathered 
has,  of  course,  been  discarded,  as  involving  merely  the  enunciation 
of  familiar  doctrines ;  but  the  nearly  universal  desire  among  mem- 
bers of  the  legal  profession  to  be  guided  by  the  latest  authority 
has  generally  been  respected.  While  it  has  not  been  found  neces- 
sary or  desirable  to  add  to  or  alter  the  text,  except  for  the  purpose 
of  correcting  a  few  typographical  errors,  the  editors  have  not  con- 
fined their  labors  to  the  mere  enumeration  of  recent  decisions. 
Without  attempting  to  enlarge  the  general  scope  of  the  work,  whose 
contents  are  so  well  known,  it  has  been  found  possible  to  give  a 
treatment  considerably  more  in  detail  of  many  important  topics. 
It  is  also  hoped  that  the  insertion  of  numerous  cross-references 
will  prove  to  be  a  material  convenience  in  the  use  of  the  book.  In 
order  that  those  who  make  use  of  this  edition  may  be  able  to  dis- 
tinguish between  the  work  of  the  author  and  that  of  the  present 
editors,  all  the  new  matter  inserted  in  this  edition  has  been  inclosed 
within  brackets. 

(ix) 


X  Peeface  to  the  Second  Edition. 

In  submitting  this  result  of  their  labors  to  the  legal  profession, 
the  editors  desire  to  express  the  hope  that  they  will  be  found  to 
have  done  nothing  to  impair  the  original  character  of  their  father's 
work,  or  to  lower  the  high  place  which  it  has  found  in  the  estimation 
of  the  Bench  and  Bar. 

C.  P.  POMEROY. 

J.  N.  P.,  Jr. 
San  Fkancisco,  April,  1892, 


PREFACE. 


The  author  herewith  submits  to  the  legal  profession  a  text-bonk 
which  treats,  in  a  somewhat  comprehensive  manner,  of  the  equitable 
jurisdiction  as  it  is  now  held  by  the  national  and  state  tribunals, 
and  of  the  equitable  jurisprudence  as  it  is  now  administered  by 
the  courts  of  the  United  States,  and  of  all  those  states  in  which  the 
principles  of  equity,  originally  formulated  by  the  English  Court 
of  Chancery,  have  been  adopted  and  incorporated  into  the  municipal 
law.  It  is  proper  that  he  should,  in  a  few  words,  explain  the 
motives  which  led  to  the  preparation  of  such  a  work,  and  describe 
the  plan  which  he  has  pursued  in  its  composition. 

While  the  supreme  court  of  judicature  act  was  pending  before 
the  British  Parliament,  there  appeared  in  the  Saturday  Review 
a  series  of  articles  written  by  one  of  the  ablest  lawyers  and  most 
profound  thinkers  of  the  English  bar,  which  pointed  out  a  grave 
danger  threatening  the  jurisprudence  of  England  in  the  plan,  as 
then  proposed,  for  combining  legal  and  equitable  rights  and 
remedies  in  the  same  action,  and  administering  them  by  the  same 
tribunal.  The  writer  showed,  as  the  inevitable  result  of  the  system, 
that  equitable  principles  and  doctrines  would  gradually  be  sup- 
pressed and  disappear  in  the  administration  of  justice;  that  they 
would  gradually  be  displaced  and  supplanted  by  the  more  inflex- 
ible and  arbitrary  rules  of  the  law;  until  in  time  equity  would 
practically  cease  to  be  a  distinctive  branch  of  the  national  juris- 
prudence.!    The  reasoning  of    these   remarkable  articles  was  so 

1  The  reality  of  the  clanger,  and  the  importance  of  the  legislative  enact- 
ment by  which  it  was  averted,  are  most  unmistakably  shown  in  the  current 
series  of  English  reports.  Able  common-law  judges,  taking  a  part  in  the 
decision  of  equity  causes,  are  frequently  represented  as  attacking,  and  even 
denouncing,  equitable  principles  and  doctrines  which  have  for  centuries 
been  treated  by  the  court  of  chancery  as  fundamental  and  elementary, — 
principles  which  have  been  most  fruitful  in  results,  and  have  been  applied 
in  numberless  forms  to  the  equity  jurisprudence.  Can  there  ba  a  doubt 
that  equity,  exposed  to  such  judicial  attacks  from  members  of  the  highest 
court,  would  gradually  have  succumbed,  and  finally  ceased  to  be  a  dis- 
tinctive part  of  the  English  municipal  law? 

(xi) 


xii  Preface. 

cogent  and  convincing  that  it  produced  a  deep  impression,  not 
only  upon  the  English  bench  and  bar,  but  even  upon  Parliament, 
and  it  ultimately  led  to  an  amendment  of  the  act  by  the  addition 
of  the  following  clause,  which  has  undoubtedly  averted  the  antici- 
pated danger:  "Generally,  in  all  matters  in  which  there  is  any 
conflict  or  variance  between  the  rules  of  equity  and  the  rules  of  the 
common  law  with  reference  to  the  same  matter,  the  rules  of  equity 
shall  prevail." 

I  have  referred  to  this  incident  simply  for  the  purpose  of  indi- 
cating its  application,  under  like  circumstances,  to  the  law  of  our 
own  country.  The  arguments  of  the  English  essayist  were  purely 
a  priori,  and  were  confined  to  the  judicial  system  of  England. 
They  would  apply  with  equal  force  to  a  large  portion  of  the  Amer- 
ican states ;  and  the  correctness  of  his  conclusions  is  established  by 
the  judicial  experience  of  those  commonwealths  during  the  past 
thirty  years.  Since  the  first  New  York  Code  of  Practice  in  1848, 
about  one  half  of  the  states  and  territories  have  adopted  the  Re- 
formed Procedure.  As  the  central  conception  of  this  system  is 
the  abolition  of  all  external  distinctions  between  actions  at  law 
and  suits  in  equity,  the  union  of  legal  and  equitable  rights  and 
remedies  in  one  proceeding,  and  the  substitution  of  many  important 
equitable  in  place  of  legal  methods,  it  was  confidently  supposed 
that  in  progress  of  time  the  doctrines  of  equity  would  obtain  a 
supremacy  over  those  of  the  law  in  the  administration  of  justice, 
and  that  the  entire  jurisprudence  of  a  state  would  gradually  become 
more  equitable,  more  informed  with  equitable  notions.  It  must  be 
confessed,  I  think,  that  the  experience  of  the  past  thirty  years 
in  these  states  points  to  a  directly  contrary  result.  Every  careful 
observer  must  admit  that  in  all  the  states  which  have  adopted  the 
■Reformed  Procedure  there  has  been,  to  a  greater  or  less  degree,  a 
weakening,  decrease,  or  disregard  of  equitable  principles  in  the 
administration  of  justice.  I  would  not  be  misunderstood.  There 
has  not,  of  course,  been  any  conscious  intentional  abrogation  or 
rejection  of  equity  on  the  part  of  the  courts.  The  tendency,  how- 
ever, has  plainly  and  steadily  been  towards  the  giving  an  undue 
prominence  and  superiority  to  purely  legal  rules,  and  the  ignoring, 
forgetting,  or  suppression  of  equitable  notions.  The  correctness 
of  this  conclusion  cannot  be  questioned  nor  doubted;  the  consent- 
ing testimony  of  able  lawyers  who  have  practiced  under  both 
systems  corroborates  it;  and  no  one  can  study  the  current  series  of 


Pkeface.  xiii 

state  reports  without  perceiving  and  acknowledging  its  truth.  In 
short,  the  principles,  doctrines,  and  rules  of  equity  are  certainly 
disappearing  from  the  municipal  law  of  a  large  number  of  the 
states,  and  this  deterioration  will  go  on  until  it  is  checked  either 
by  a  legislative  enactment,  or  by  a  general  revival  of  the  study  of 
equity  throughout  the  ranks  of  the  legal  profession. 

I  would  not  be  understood  as  condemning  the  Reformed  Pro- 
cedure on  this  account.  The  tendency  which  I  have  mentioned 
may  be  checked;  the  danger  is  incidental,  and  can  easily  be  pre- 
vented. A  brief  legislative  enactment,  substantially  the  same  as 
that  added  to  the  English  Judicature  Act,  would  render  the  system 
perfect  in  theory,  and  would  secure  to  equity  the  life  and  prom- 
inence which  properly  belong  to  it,  and  which  should  be  preserved. 
The  state  of  Connecticut  has  incorporated  the  clause  into  its  recent 
reformatory  legislation ;  that  it  should  not  have  been  added  to  all 
the  Codes  of  Procedure  is  very  surprising. 

I  need  not  dwell  upon  the  disastrous  consequences  of  the  tend- 
ency above  described,  if  it  should  go  on  to  its  final  stage.  Even 
a  partial  loss  of  equity  would  be  a  fatal  injury  to  the  jurisprudence 
of  a  state.  So  far  as  equitable  rules  differ  from  those  of  the  law, 
they  are  confessedly  more  just  and  righteous,  and  their  disappear- 
ance would  be  a  long  step  backward  in  the  progress  of  civilization. 

It  is  of  vital  importance,  therefore,  that  a  treatise  on  equity 
for  the  use  of  the  American  bar  should  be  adapted  to  the  existing 
condition  of  jurisprudence  throughout  so  large  a  part  of  the 
United  States.  It  should  be  based  upon,  and  should  present  in  the 
clearest  light,  those  principles  which  lie  at  the  foundation  of  equity, 
and  which  are  the  sources  of  its  doctrines  and  rules.  In  this  re- 
spect, the  plan  of  the  present  work  wa^  deliberately  chosen,  and 
has  been  steadily  pursued,  even  when  it  has  led  to  amplifications 
which  might,  perhaps,  be  regarded  by  some  readers  as  unneces- 
sary. It  has  been  my  constant  endeavor  to  present  the  great  under- 
lying principles  which  sustain  the  whole  superstructure  of  equity, 
and  to  discuss,  explain,  and  illustrate  them  in  the  most  complete 
manner.  Some  of  these  principles  are  so  comprehensive  and  fruit- 
ful, that  one  who  has  grasped  them  in  their  fullness  of  conception 
has  already  mastered  the  system  of  equity;  all  else  is  the  mere 
application  of  these  grand  truths  to  particular  circumstances. 

Such  a  treatise,  designed  for  the  American  profession,  if  it  would 
at  all  meet  and  satisfy  the  needs  of  the  bench  and  bar,  must  also 


xiv  Preface. 

be  based  upon  and  adapted  to  the  equitable  jurisdiction  which  is 
actually  possessed  by  the  state  and  national  courts,  and  the  equi- 
table jurisprudence  which  is  actually  administered  by  them.  It 
must  recognize  the  existing  condition,  both  of  law  and  equity,  the 
limitations  upon  the  chancery  jurisdiction  resulting  from  varying 
statutes,  and  the  alterations  made  by  American  legislation,  institu- 
tions, and  social  habits.  Many  departments  of  equity,  many  doc- 
trines and  modes  of  applying  the  jurisdiction  which  were  important 
at  an  earlier  day,  and  are  perhaps  still  prominent  in  England,  have 
become  practically  obsolete  in  this  country ;  while  others  have  risen 
in  consequence,  and  are  constantly  occupying  the  attention  of  the 
courts.  It  has  been  my  purpose  and  endeavor  to  discuss  and  de- 
scribe the  equity  jurisprudence  as  viewed  in  this  light,  and  to  pre- 
sent the  actual  system  which  is  now  administered  by  the  courts  of 
the  United  States  and  of  all  the  states.  As  an  illustration,  I  have 
attempted  to  ascertain  and  determine  the  amount  of  jurisdiction 
held  by  the  different  state  tribunals,  as  limited  and  defined  by 
statutes,  and  established  by  judicial  interpretation;  and  have  not 
confined  the  treatment  of  this  subject  to  a  mere  account  of  the  gen- 
eral jurisdiction  possessed  by  the  English  Court  of  Chancery.  It 
is  true  that  the  fundamental  principles  are  the  same  as  those  which 
were  developed  through  the  past  centuries  by  the  English  chancery ; 
but  the  application  of  these  principles,  and  the  particular  rules 
which  have  been  deduced  from  them,  have  been  shaped  and  deter- 
mined by  the  modern  American  national  life,  and  have  received 
the  impress  of  the  American  national  character.  It  has  been  my 
design,  therefore,  to  furnish  to  the  legal  profession  a  treatise  which 
should  deal  with  the  equity  jurisdiction  and  jurisprudence  as  they 
now  are  throughout  the  United  States;  with  their  statutory  modi- 
fications and  limitations,  and  under  their  different  types  and  forms 
in  various  groups  of  states;  and  thus  to  prepare  a  work  which 
would  be  useful  to  the  bench  and  bar  in  all  parts  of  our  country. 
During  its  composition  I  have  constantly  had  before  me  a  high 
ideal.  The  difficulty  in  carrying  out  this  conception  has  been  very 
great;  the  labor  which  it  has  required  has  been  enormous.  .  That 
I  may  have  fallen  short  of  this  ideal  in  all  its  completeness  and 
perfection,  I  am  only  too  conscious ;  its  full  realization  was  perhaps 
impossible.  If  the  book  shall  be  of  any  help  to  the  courts  and  the 
profession  in  administering  equitable  doctrines  and  rules ;  if  it  shall 
be  of  any  assistance  to  students  in  disclosing  the  grand  principles 


Preface.  xv 

of  equity;  if  it  shall  to  any  extent  maintain  the  equitable  juris- 
prudence in  its  true  position  as  a  constituent  part  of  the  municipal 
law, — then  the  time  and  labor  spent  in  its  composition  will  be 
amply  repaid. 

The  internal  plan,  the  system  of  classification  and  arrangement, 
the  modes  of  treatment,  and  especially  the  reasons  for  departing 
from  the  order  and  methods  which  have  usually  been  followed  by 
text-writers,  are  described  at  large  in  the  third,  fourth,  and  fifth 
sections  of  the  Introductory  Chapter.  To  that  chapter  I  would 
respectfully  refer  any  reader  who  may  at  the  outset  desire  a  full 
explanation  of  these  matters,  which  are  so  important  to  a  full  un- 
derstanding of  an  author's  purposes,  and  to  a  correct  appreciation 
of  his  work.  The  book  is  submitted  to  the  profession  with  the  hope 
that  it  may  be  of  some  aid  to  them  in  their  judicial  and  forensic 
duties,  and  may  accomplish  something  for  the  promotion  of  justice, 
righteousness,  and  equity  in  the  legal  and  business  transactions  and 
relations  of  society.  J.  N.  P. 

Hastings  (College  of  the  Law. 
San  Feancisco,  May,  1&81. 


TABLE  OF  CONTENTS. 


CONTENTS  OF  VOLUME  I. 


INTRODUCTORY  CHAPTER. 
'  SECTION  I. 

THE    ORIGIN    OF    EQUITY    JURISDICTION    AND    JURISPRU- 
DENCE. 

§  1.  Object  of  this  Introduction, 

§§  2-9.  Mquitas  in  the  Roman  Law. 

§§  10-42.  Origin  of  Equity  in  the  English  Law. 

§§  10-13.  Primitive  condition  of  the  law  and  the  courts. 

§§  14, 15.  Early  influences  of  the  Roman  Law. 

§§  16-29.  Causes  which  made  a  court  of  equity  necessary. 

§§  21-23.  The  earliest  common-law  actions  and  procedure. 

§  24.  Statute  of  Edward  I.  concerning  new  writs. 

§§  25-29.  Limited  results  of  this  legislation. 

§§  30-42.  Commencement  and  progress  of  the  chancery  jurisdiction. 

§  31.  Original  powers  of  the  King's  Council. 

§32.  Original  common-law  jurisdiction   of  the  Chancellor. 

§§33-35.  Jurisdiction    of    grace    transferred    to    the    Chancellor;    Statute    24 

Edward  III. 

§§  36-39.  Development  of  the  equitable  jurisdiction. 

§  40.  Abolition  of  the  court  in  England  and  in  many  American  statea. 

§§  41,  42.  Equity  jurisdiction  in  other  American  states. 


SECTION  n. 

THE  NATURE  OF  EQUITY. 

§  43.     Importance  of  a  correct  notion  of  equity. 
§§44,45.     Various  meanings  given  to  the  word. 
§§46,47.     True  meaning  as  a  department  of  our  jurisprudence, 
§§  48-54.     Theories  of  the  early  chancellors  concerning  equity  as  both  supply- 
ing and   correcting   the   common  law. 
§§55-58.     Sources  from  which  the  early  chancellors  took  their  doctrines;  theii 

notions  of  "conscience"   as  a  ground  of  their  authority. 
§§  59-61.     Equity  finally  established  upon  a  basis  of  settled  principles. 

§  62.     How  the  equitable  jurisdiction  is  determined  at  the  present  day. 
§§63-67.     Recapitulation:   Nature  of  equity  stated  in  four  propositions. 

(xvii) 


XVlll  TABLE    OF    CONTENTS. 

SECTION  III. 

THE  PRESENT  RELATIONS  OF  EQUITY  WITH  THE  LAW. 

§  68.  Importance    of   correctly   understanding   these   present    relations. 

§  69.  Changes  in  the    relations  of  equity  to  the  law  effected  partly  by 
statute   and    partly   by   decisions. 

§§  70-88.  Important   instances   of   such   changes   in   these   relations. 

§  70.  In   legal   rules   concerning  the  effect  of   the   seal. 

§  71.  iji'ifo  suits   on   lost   instruments. 

§  72.  Ditto  forfeitures   and   penalties. 

§§  73,  74.  Ditto  mortgages    of    land. 

§  75.  In  statutes  concerning  express  trusts. 

§  76.  Ditto  recording  and  doctrine   of  prioritiea. 

§  77.  Ditto  administration   of    decedents'   estates. 

§  78.  Ditto  jurisdiction   over  infants. 

§§  79,  80.  Ditto  married   women's   property. 

§  81.  .  In  statutory   restrictions    upon    the   equitable   jurisdiction. 

§§  82,  83.  In  the  practical  abolition  of  the  "auxiliary"  jurisdiction. 

§§  84-88.  In  the  Reformed  Procedure  combining  legal  and  equitable  methods. 

SECTION  IV. 

THE  CONSTITUENT  PARTS  OF  EQUITY. 

§  89.     Object  of  this  section. 
§§  90,  91.     Rights  are  either  "primary"  or  "remedial";   each  described. 

§92.     Divisions  of  "primary"  rights,  viz:   1.  Those  concerned  with  per- 
sonal status;  2.  Those  concerned  with  things. 
§§  93-9'5.     Two  general  classes  of  rights  concerned  with  things,  viz.:  "real" 

and  "personal" ;  each  described. 
§§  96,  97.     What  of  these  kinds  of  rights  are  embraced  within  equity;  both 
"primary"  and  "remedial." 
§§  98-107.     I.  Equitable  primary  rights,  kinds  and  classes  of. 
§§  108-116.     II.  Equitable  remedial  rights,  kinds  and  classes  of. 

§  112.     General  classes  of  equitable  remedies. 
§§  113-116.     Mode  of  administering  them. 

§  116.     How  far  legal  and  equitable  modes  can  be  combined. 
§  117.     Recapitulation. 

SECTION  V. 

THE  PRINCIPLES  OF  CLASSIFICATION. 

§  118.     Importance  and  difficulty  of  a  correct  classification. 
§§  119, 120.     Different  grounds  which  might  be  taken  for  a  classification. 
§§  121-125.     Ordinary  mode   of  classification   according   to   the  nature  of  the 
jurisdiction. 

§  121.     In  the  three  divisions  of  exclusive,  concurrent,  and  auxiliary. 


TABLE  OF  CONTENTS.  XIX 

§§122,  12.S.     DilTcront  modes   of  carrying  out  this  system  by   various  writers. 
§§]24,  125.     I\indaniental  objections  to  this  system  of  classification. 
§§  126,  127.     The  true  principles  of  classification  in  the  present  condition  of 
Equity. 
§  128.     Plan  and  order  of  arrangement  adopted  in  this  treatise. 


PART  FIRST. 

THE  NATURE  AND  EXTENT  OF  EQUITY  JURISDICTION. 

CHAPTER  FIE  ST. 

THE  GENERAL  DOCTRINE  CONCERNING  THE  JURISDICTION. 

SECTION  I. 
FUNDAMENTAL  PRINCIPLES  AND  DIVISIONS. 

§  129.     Equity  jurisdiction  defined. 

§  130.     Eequisitea  in  order  that  a  case  may  come  within  it. 

§  131.     Distinction  between  the  existence  of  equity  jurisdiction  and  the 
proper  exercise  of  it. 

§  132.   .  Inadequacy  of  legal  remedies,  how  far  the  test. 

§133,     Equity  jurisdiction  depends  on  two  facts:  the  existence  of  equi- 
table interests,  and  the  inadequacy  of  legal  remedies. 
§§  134, 135.     How  far  the  jurisdiction  is  i/n  personam,  how  far  ih  rem. 

§  136.     Equity    jurisdiction    threefold, — exclusive,    concurrent,    and    aux- 
iliary. 
§§  137,  138.     What  embraced  in  the  exclusive  jurisdiction. 
§§  139,  140.     What  embraced  in  the  concurrent  jurisdiction. 

§  141.     Cases  may  fall  under  both. 
§§  142-144.     What  embraced  in  the  auxiliary  jurisdiction. 

§  145.     Order  of  subjects. 

SECTION  II. 

THE  EXCLUSIVE   JURISDICTION. 

§  146.  Equitable  primary  rights  and  "equities"  defined. 

§§  147-149.  Equitable  estates  described. 

§  150.  Certain    distinctive    equitable    doctrines   forming    part    of    equity 
jurisprudence. 

§§  151-155.  Trusts   described. 

§  156.  Executors  and  administrators. 

§§157,158.  Fiduciary  relations. 

§§  159,  160.  Married  women's  separate  property. 

§  161.  Estates  arising  from  equitable  conversion. 


XX  TABLE    OF    CONTENTS. 

§§162,163.     Mortgages  of  land. 

§  164.     Mortgages  of  personal  property. 
§§  165-167.     Equitable  liens. 
§§  168,  169.     Estates  arising  from  assignment'  of  things  in  action,  possibilities, 

etc.,  and  from  an  equitable  assignment  of  a  fund. 
§§  170-172.     Exclusive  equitable  remedies  described. 

SECTION  III. 
THE  CONCURRENT  JURISDICTION. 

§§  173,  174.     What    embraced    in   the    concurrent   jurisdiction;    inadequacy    of 
legal  remedies  defined. 
§  175.     The  remedies  given  must  be  legal  in  their  nature. 
§§  176-179.     General  principle;    when  no   concurrent  jurisdiction  exists. 
§§177,178.     Examples  of  such  cases. 

§  179.     Where  a  law  court  has  first  taken  cognizance  of  a  case. 
§  180.     General  principle;  where  concurrent  jurisdiction  does  exist. 
§  181.     Eule  Urst.     Where  equity   has   jurisdiction   for  any   partial   pur- 
pose, it  may  retain  the  cause  for  all  purposes. 
§  182.     Eule  second.     Where  equity  originally  had  jurisdiction,  and  the 
law   subsequently   acquires  jurisdiction   over  the   same   matter, 
the  equity  jurisdiction  still  continues. 
§  183.     Effect  of  the  reformed  procedure  upon  the  equity  jurisdiction. 
§§  184^189.     Enumeration  of  the  principal  matters  over  which  the  concurrent 
jurisdiction  ordinarily  extends. 
§  185.^    Suits  for  the  recovery  of  lands  and  of  chattels. 
§§  186-188.     Suits  for  pecuniary  recoveries. 

§  188.     Suits  arising  from  accident^  mistake,  or  fraud. 
§  189.     Other  special  eases. 

SECTION  IV. 
THE  AUXILIARY  JURISDICTION. 

§  190.     The  auxiliary  jurisdiction  defined. 
§§  191-209.     Of  discovery. 

§  191.     Definition  and  kinds  of  discovery, 
§  192.     Origin  of,  in  English  and  in  Roman  law. 
§§193,194.     Effect  of  modern  legislation;  how  far  discovery  proper  has  been 
abolished  by   statutes. 
§  195.     General  doctrine;  when  discovery  will  or  will  not  be  enforced. 
§§  196, 197.     I.  What  judicial  proceedings,   in  what  courts,   will  be  aided  by 

discovery  in  equity. 
§§  198-200.     II.  The  parties;   their  situation  and  relations  to  each   other,  in 
order  that  a  discovery  may  be  granted. 
§  198.     The  plaintiff. 
§  199.     The  defendant. 
§  200.     A  l}ona  fide  purchaser. 


TABLE  OF  CONTENTS.  XXI 

§§  201-207.     III.  The    nature,    subject-matter,    and    objects    of    the    discovery 
itself;    of  what   the  plaintiff   may   compel   discovery,    and   the 
defendant  must  make  discovery. 
§201.     General  doctrine;  of  what  facts  discovery  will  be  compelled. 
§  202.     Of  what  kinds  of  facts  discovery  will  not  be  compelled. 
§  203.     What  is  privileged  from  discovery. 

§  204.     The  manner  in  which  the  defendant  must  make  discovery. 
§§  205-207.     Production  and  inspection  of  documents. 

§  208.     IV.  When,  how  far,  and  for  whom  may  the  answer  in  the  dis- 
covery suit  be  used  as  evidence. 
§  209.     How  far  the  foregoing  rules  have  been  altered  by  statute. 
§§  210-215.     Of  the  examination   of   witnesses. 

§  210.     This  branch  of  the  jurisdiction  described. 
§§211,212.     I.  Suit  to  perpetuate  testimony. 

§  212.     Statutory  modes  substituted. 
§§  213-215.     II.  Suits  to  take  the  testimony  of  witnesses  de  bene  esse,  and  of 
witnesses  in  a  foreign  country. 
§  215.     Statutory  modes  substituted. 


CHAPTER  SECOND. 

GENERAL  RULES   FOR   THE    GOVERNMENT    OF   THE    JURIS- 
DICTION. 


SECTION   I. 
INADEQUACY  OF  LEGAL  REMEDIES. 

§  216.     Questions  to  be  examined  stated. 

§  217.     Inadequacy  of  legal  remedies  is  the  very  foundation  of  the  con- 
current jurisdiction. 

§  218.     Is   only   the   occasion    for   the  rightful   exercise   of  the  exclusive 
jurisdiction. 

§  219.     Operation  of  the  principle  upon  the  exclusive  jurisdiction ;   does 
not  affect  the  first  branch,  which  deals  with  equitable  estates 
and  interests. 
g§  220, 221.     Is    confined    to    the    second    branch,    which    deals   with    equitable 
remedies. 

§  222.     Summary   of   the   equity   jurisdiction   as   affected   by   the    inade- 
quacy of  remedies. 

SECTION  II. 

DISCOVERY  AS  A  SOURCE  OR  OCCASION  OF  JURISDICTION. 

§  223.     General  doctrine  as  to   discovery  as  a  source  of   concurrent  and 
an  occasion  for  exclusive  jurisdiction. 
§§224,225.     Early  English  rule. 

§  226.     Present  English  rule. 


XXn  TABLE    OF    CONTENTS. 

§§  227-229.  Broad  rule  established  in  some  American  states. 

§  229.  The  limitations  of  this  rule. 

§  230.  The  true  extent  and  meaning  of  this  rule  examined. 


SECTION  III. 

THE  DOCTRINE  THAT  JURISDICTION  EXISTING  OVER  SOME 
PORTION  OR  INCIDENT  EXTENDS  TO  AND  EMBRACES 
THE  WHOLE  SUBJECT-MATTER  OR  CONTROVERSY. 

§  231.  The  doctrine  as  applied  in  the  concurrent  jurisdiction. 

§  232.  As  applied  in  the  exclusive  jurisdiction. 

§  233.  Limitations  on  the  doctrine. 

6§  234-241.  Illustrations  of  the  doctrine. 

§  234.  In  cases  of  discovery. 

§  235.  In  cases  of  administration. 

§  236.  In  cases  of  injunction. 

§  237.  In  cases  of  waste,  nuisance,  damages. 

§§  238-241.  In  various  other  cases. 

§  242.  Effect  of  the  reformed  procedure  on  the  doctrine. 


SECTION  IV. 

THE  DOCTRINE   THAT  JURISDICTION  EXISTS  IN  ORDER  TO 
PREVENT  A  MULTIPLICITY  OF  SUITS. 

§  243.     The  doctrine  applies  to  both  kinds  of  jurisdiction. 
§  244.     The  questions  to  be  examined  stated. 

§  245.     Four  possible  classes  of  cases  to  which  the  doctrine  may  apply. 
§§  246-248.     "Bills  of  peace,"  rationale  of,  and  examples. 

§  248.     Bills  "to  quiet  title"  explained. 
§§  249-251.     Eationale  of  the  doctrine  examined  on  principle. 

[§25114.     Jurisdiction  not  exercised  when  that  would   be  ineffectual;   sim- 
plifying of  the  issues  essential. 
§  251%.     There  must  be  a  practical  necessity  for  the  exercise  of  the  juris- 
diction.] 
§§  252-261.     Examination  of  the  doctrine  upon  judicial  authority. 

§  252.     First  class. 
§§  253,  254.     Second  class. 
§§  255-261.     Third  and  fourth  classes. 

§256.     Community  of  interest:   "Fisheries  Case";  "Case  of  the  Duties." 
§  257.     Where  proprietors   of   distinct  tracts   of  land   have  been   injured 

by  one  wrong. 
§  258.     Where  proprietors  of  distinct  tracts  of  land  have  been  relieved 
from  illegal  local  assessments. 
§§  259, 260.     General   rule  as    to    relief    from   illegal    taxes,    assessments,    and 
public  burdens,  on  the  ground  of  multiplicity  of  suits. 
§  261.     Other  special  cases  of  the  third  and  fourth  classes. 


TABLE  OF  CONTENTS.  XXlll 

§§  262-266.  Examination  of  opposing  decisions;   conclusions  reached  by  such 
decisions. 

§  263.  In  the  first  and  second  classes. 

§§  264-266.  In  the  third  and  fourth  classes. 

§§  265,  266.  In  cases  of  illegal  taxes  and  other  public  burdens. 

§§  267-270.  Conclusions  derived  from  the  entire  discussion. 

§§  268-270.  Ditto  as  to  the  third  and  fourth  classes. 

§§  271-274.  Enumeration  of  cases  in  which  the  jurisdiction  to  avoid  a  multi- 
plicity of  suits  has  been  exercised. 

§  271.  Cases  of  the  first  class. 

§  272.  Cases  of  the  second  class. 

§  273.  Cases  of  the  third  class. 

§  274.  Cases  of  the  fourth  class. 

§  275.  The  jurisdiction  based  upon  statute. 

SECTION  V. 

THE  DOCTRINE  THAT  THE  JURISDICTION  ONCE  EXISTING  IS 
NOT  LOST  BECAUSE  THE  COURTS  OF  LAW  HAVE  SUBSE- 
QUENTLY ACQUIRED  A  LIKE  AUTHORITY. 

§  276.  The  doctrine  is  applied  to  both  kinds  of  jurisdiction. 

§§277,278.  "Where  the  jurisdiction  at  law  has  been  enlarged  entirely  by  the 
action  of  the  law  courts. 

§  278.  Ditto,  examples. 

§§  279-281.  "Where  the  jurisdiction  at  law  has  been  enlarged  by  statutes. 

§  280.  Ditto,  examples. 

§  281.  "Where  such  statute  destroys  the  previous   equity  jurisdiction. 


CHAPTEK  THIRD 

THE  JURISDICTION  AS  HELD  BY  THE  COURTS  OF  THE  SEV- 
ERAL STATES,  AND  BY  THE  COURTS  OF  THE  UNITED 
STATES. 

SECTION  I. 

ABSTRACT  OF  LEGISLATIVE  PROVISIONS. 

§  2S2.     Source  of  jurisdiction,  both  legal  and  equitable,  of  the  courts  in  the 

American   states. 
§  283.     Division  of  the  states  into  four  classes  with  respect  to  the  amount  of 

equity  jurisdiction  given  to  their  courts. 
§  284.     The  first  class  of  states. 
§  285.     Tlie  second  class  of  states. 
§  286.     The  third  class  of  states. 
§  287.     The  fourth   class  of  states. 
§  288.     Summary  of  conclusions. 


XXIV  TABLE    OF   CONTENTS. 

SECTION  II. 

THE  JURISDICTION  AS  ESTABLISHED  BY  JUDICIAL  INTER- 

PRETATIuN. 

§  289.     The  questions  to  be  examined  stated. 

§  290.     Diversity  of  statutory  interpretation  in  different  states. 
§§  291-298.     United  States  courts,  equity  jurisdiction  of. 

§  292.     First  principle:   Uniformity  of  jurisdiction. 

§  293.     Second  principle:  Identity  of  jurisdiction. 

§294,     Third  principle:   Extent  of  tlie  jurisdiction. 

§  295.     Fourth  principle :   Inadequacy  of  legal  remedies. 
§§  296,  297.     Illustrations. 

§297.     Ditto;   effect  of  state  laws  on  the  subject-matter  of  the  juris- 
diction. 

§  298.     Territorial  limitations  on  the  jurisdiction. 
g§  299-341.     States  in  which  only  a  special  and  partial  jurisdiction  has  been 

given  by  statute. 
§§  299-310.     New  Hampshire. 
§§  311-321.     Massachusetts, 
§§  322-337.     Maine. 
§§  338-341.     Pennsylvania. 
§§  342-352.     The  other  states  in  wWch  a  general  jurisdiction  has  been  given. 

§  342.     "What  states  are  included  in  this  division. 

§  343.     Questions  to  be  examined  stated. 

§  344.     Interpretation   of   statute   limiting  the  jurisdiction   to   eases   for 
which  the  legal  remedy  is  inadequate. 

§345.     General  extent  of  the  statutory  jurisdiction;  the  states  arranged 
in  the  foot-note. 
§§  346-352.     How  far  this  equity  jurisdiction  extends  to  the  administration 
of  decedents'  estates. 

§  347.     Probate  courts,  jurisdiction  and  powers  of. 

§  348.     Class  first:   The  ordinary  equity  jurisdiction  over  administrations 
expressly  abolished. 

§  349.     Class  second :   Such  jurisdiction  practically  abrogated  or  obsolete. 

§350.     Class    third:    Such   jurisdiction    still   existing    and   actually    con- 
current. 
§§  351,  352.     Special  subjects  of  equity  jurisdiction  connected  with  or  grow- 
ing out  of  administrations. 
§§  353-358.     States  which  have  adopted  the  reformed  system  of  procedure. 

§  354.     General  effect  of  this  procedure  on  the  equity  jurisdiction. 
§§  355-358.     Its  particular  effects  upon  equity. 

§  356.     On  certain  equitable  interests  and  rights. 

§  357.     On  certain  equitable  remedies. 

§  358.     On  the  doctrine  as  to  inadequacy  of  legal  remedies. 


TABLE  OF  CONTENTS.  XXV 

PART  SECOND. 

THE  MAXIMS  AND  GENERAL  PRINCIPLES  OF  EQUITY 
JURISPRUDENCE,  AND  THE  EVENTS  WHICH  ARE 
OCCASIONS  OF  EQUITABLE  PRIMARY  OR  REMEDIAL 
RIGHTS. 

PRELIMINARY  SECTION. 

§  359'.  Objects,  questions,  and  divisions,  stated. 

§  360.  Equitable  principles,  described. 

§  361.  Equitable  doctrines,  described. 

§  362.  Occasions  of  equitable  rights. 

CHAPTER  FIRST. 

THE  FUNDAMENTAL  PRINCIPLES  OR  MAXIMS  OF  EQUITY. 

SECTION  I. 

EQUITY  REGARDS  THAT  AS  DONE  WHICH  OUGHT  TO  BE 

DONE. 

§  363.  List  of  equitable  maxims. 

§364.  Equity  regards  as  done  what  ought  to  be  done;  its  importance. 

§§  365-377.  Its  true  meaning,  and  its  effects  upon  equitable  doctriues. 

§§  366-369.  Is  the  source  of  equitable  property  and  estates. 

§  366.  Sources  of  legal  property  or  titles  described. 

§  367.  Effect  of  an  executory  contract  at  law. 

§  368.  Effect  of  an  executory  contract  in  equity. 

§  369.  Sources  of  aU  kinds  of  equitable  property  described. 

§§  370-376.  The  equitable  estates  which  are  derived  from  this  principle. 

§  371.  Conversion. 

§  372.  Contracts  for  the  purchase  and  sale  of  lands. 

§373.  Assignments  of  possibilities;  sale  of  chattels  to  be  acquired  in 
the  future;  assignments  of  things  in  action;  equitable  assign- 
ments of  moneys;   and  equitable  liens. 

§  374.  Express  trusts. 

§  375.  Trusts  arising  by  operation  of  law. 

§  376.  Mortgage;  equity  of  redemption. 

§  377.  Conclusions. 

SECTION  II. 
EQUITY  LOOKS  TO  THE  INTENT  RATHER  THAN  TO  THE  FORM. 

§  378.     Its  meaning  and  effect. 

§  379.     Legal  requirements  of  mere  form. 


XXVI  TABLE   OF   CONTENTS. 

§§  380-384.  Is  the  source  of  equitable  doctrinea. 

§  380.  Of  equitable  property. 

§381.  Of  penalties  and  forfeitures. 

§  o82.  Of  mortgages. 

§  383.  Effect  of  the  seal. 

§  384.  Other  special  instances. 

SECTION  III. 
HE  WHO  SEEKS  EQUITY  MUST  DO  EQUITY. 

§  385.  General  meaning  of  the  principle. 

§§386,387.  In  what  eases  applicable. 

§  388.  Is  a  general  rule  regulating  the  administration  of  reliefs. 

§§  389-393.  Illustrations  of  the  principle. 

§  389.  The  wife's  equity. 

§  390.  Equitable  estoppel. 

§  391.  Relief  against  usury. 

§§  392,  393.  Other  special  instances. 

§§  394-396.  Is  also  the  source  of  certain  equitable  doctrines. 

§  395.  Of  election. 

§  396.  Of  marshaling  securities. 

SECTION  IV. 

HE   WHO   COMES   INTO   EQUITY  MUST   COME   WITH   CLEAN 

HANDS. 

§  397.     General  meaning  of  this  principle. 

§  398.     Is  based  upon  conscience  and  good  faith. 

§  399.     Limitations  upon  it. 
§§  400-403.     Illustrations  of  its  application. 

§  400.     In  specific  performance. 

§  401.     In  cases  of  fraud. 

§  402.     In  cases  of  illegality. 

§403.  Limitation  in  cases  of  fraud  and  illegality;  parties  not  in  pari 
delicto. 

§  404.     Conclusion. 

SECTION  V. 

EQUALITY  IS   EQUITY. 

§  405.     Its  general  meaning. 
§§  406-411.     Its  effects  upon  certain  equitable  doctrines. 
§§  406,  407.     Of  pro  rata  distribution  and  contribution. 

§  408.     Ownership  in  common. 

§  409.     Joint  indebtedness;  liability  of  estate  of  deceased  joint  debtor. 

§410.     Settlement  of  insolvent  estates;  marshaling  of  assets. 

§411.  Abatement  of  legacies;  apportionment  of  liens;  appointment  un- 
der trust  powers;  contribution  among  co-sureties  and  co-con- 
tractors. 

§  412.     Conclusion. 


TABLE  OF  CONTENTS.  XXVll 

SECTION  VI. 

WHERE  THERE  ARE  EQUAL  EQUITIES,  THE  FIRST  IN  ORDER 
OF  TIME  SHALL  PREVAIL. 

§  413.     Its  application. 

§  414.     Its  true  meaning;  opinion  in  Rice  v.  Bice. 

§  415.     Its  eifect  upon  equitable  doctrines. 

SECTION  VII. 
WHERE  THERE  IS  EQUAL  EQUITY,  THE  LAW  MUST  PREVAIL. 

§  416.     its  appHeation. 

§  417.     Its  meaning  and  eifects. 

SECTION  VIII. 

EQUITY  AIDS   THE   VIGILANT,  NOT   THOSE   WHO    SLUMBER 
ON  THEIR  RIGHTS. 

§  418.     Its  meaning;  is  a  rule  controlling  the  administration  o£  remedies. 
§  419.     Its  application  and  effects. 

SECTION  IX. 

EQUITY    IMPUTES    AN    INTENTION    TO    FULFILL    AN 
OBLIGATION. 

§  420.  Its  meaning  and  application. 

§§421,422.  Is  the  source  of  certain  equitable  doctrines. 

§  421.  Performance  of  covenants. 

§  422.  Trust  resulting  from  acts  of  a  trustee. 

SECTION  X. 

EQUITY  WILL  NOT  SUFFER  A  WRONG  WITHOUT  A  REMEDY. 

■  §  423.     Its  general  meaning  and  effects. 
§  424.     Limitations  upon  it. 

SECTION  XL 
EQUITY  FOLLOWS   THE  LAW. 

§§  425,  426.     Twofold  meaning  of  the  principle. 

§  425.  First,  in  obeying  the  law :  Heard  v.  Stamford,  per  Lord  Chan- 
cellor Talbot. 

§426.  Second,  in  applying  certain  legal  rules  to  equitable  estates:  Cow- 
per  V.  Cowper,  per  Sir  J.  Jckyll,  M.  R. 

§  427.     Operates  within  very  narrow  limits. 


XXVlll 


TABLE   OF   CONTENTS. 


SECTION  XII. 

EQUITY  ACTS  IN  PERSONAM,  AND  NOT  IN  REM. 

§  428.     Origin  and  original  meaning  of  this  principle. 
§  429.     In  what  sense  equitable  remedies  do  operate  in  rem. 
§§  430,431.     The  principle  that  courts  of  equity  act  upon  the  conscience  of  a 
party  explained. 
§  431.     The  same,  per  Lord  Westbury. 


CHAPTER  SECOND. 

CERTAIN  DISTINCTIVE  DOCTRINES   OF   EQUITY  JURISPRU- 
DENCE. 


SECTION  I. 
CONCERNING  PENALTIES  AND  FORFEITURES. 


§432. 
433-447. 

§433. 

§434. 
435,  436. 

§436. 
437-445. 

§437. 

§438. 

§439. 
440-445. 

§440. 
441-445. 

§441. 

§442. 

§443. 

§444. 
§445. 
§446. 


§447. 
448-460. 
449-458. 

§450. 


Questions  stated. 

Penalties;  equitable  relief  against. 

General  ground  and  mode  of  interference. 

Form  of  relief;  when  given  at  law. 

What  are  penalties. 

To  secure  the  payment  of  money  alone. 

Stipulations  not  penalties. 

Stipulations  in  the  alternative. 

Ditto,  for  the  reduction  of  an  existing  debt  upon  prompt  payment. 

Ditto,  for  accelerating  payment  of  an  existing  debt. 

Ditto,  for  "liquidated  damages." 

"Liquidated   damages"   described  in   general. 

Rules  determining  between  liquidated  damages  and  penalties. 

1.  Payment  of  a  smaller  sum  secured  by  a  larger. 

2.  Agreement  for  the  performance  or  non-performance  of  a  single 

act. 

3.  Agreement  for  the  performance  or  non-performance  of  several 

acts  of  different  degrees  of  importance. 

4.  The  party  liable  in  the  same  amount  for  a  partial  and  for  a 

complete  default. 

5.  Stipulation  to   pay  a  fixed  sum  on  default  in  one  of  several 

acts. 

Specific  performance  of  a  contract  enforced,  although  a  penalty 
is  attached;  party  cannot  elect  to  pay  the  penalty  and  not  per- 
form. 

Otherwise  as  to  stipulation  for  liquidated  damages. 

Of  forfeitures. 

When  equity  will  relieve  against  forfeitures. 

General  ground  and  extent  of  such  relief. 


TABLE  OF  CONTENTS. 


XXIX 


§  451.  Relief  when  forfeiture  is  occasioned  by  accident,  fraud,  mistake, 
surprise,  or  ignorance. 

§  452.  No  relief  wlien  forfeiture  is  occasioned  by  negligence,  or  is  willful. 

453,  454.  Relief  against  forfeitures  arising  from  covenants  in  leases. 

§  455.  Ditto,  from  contracts  for  the  sale  of  lands. 

§  456.  Ditto,  from  other  special  contracts. 

§  457.  Ditto,  of  shares  of  stock  for  non-payment  of  calls. 

§  458.  Ditto,  when   created  by  statute. 

459,  460.  Equity  will  not  enforce  a  forfeiture. 


SECTION  n. 

CONCERNING  ELECTION. 

§  461.  Questions  stated. 

§§  462-465.  Batio7iale  of  the  doctrine  discussed. 

§  463.  In  the  Roman  law. 

§  464.  Foundation,  the  presumed  intention  of  the  donor. 

§  466.  The  true  foundation  is  the  principle,  He  who  seeks  equity  muat 
do  equity. 

§§466-470.  Meaning,  extent,  and  effects  of  the  doctrine. 

§  466.  Election  in  conformity  with  instrument  of  donation. 

§§467,468.  Election  in  opposition  thereto;  rules;  compensation. 

§  469.  No  election  unless  compensation  can  be  made. 

§  470.  Applies  to  all  instruments  of  donation. 

§§471-505.  Applications;  classes  of  cases  in  which  the  necessity  for  an  elec- 
tion does  or  does  not  arise. 

§  472.  Fundamental  rule;  what  creates  the  necessity  for  an  election. 

§§  473-475.  Subordinate  rules  of  interpretation. 

§§473,474.  Donor  has  only  a  partial  interest;  evidence  of  intention  not  ad- 
missible; a  general  gift  raises  no  election. 

§  475.  Other  special  rules  of  interpretation. 

§§  476—486.  First  class:  Donor  gives  property  wholly  another's. 

§  477.  Ordinary  case,  gift  of  specific  property. 

§§  478-480.  Under  appointments  in  pursuance  of  powers. 

§§  481-486.  Where  testator  has  attempted  to  give  property  by  a  will  which 
is  ineffectual. 

§  482.  Infancy  or  coverture  of  testator. 

§  483.  Will  valid  as  to  personal,  invalid  as  to  real,  estate. 

§  484.  Will  invalid  as  to  property  in  another  state  or  country. 

§  485.  Will  devising  after-acquired  lands. 

§  486.  Will  of  copyholds. 

§§  487-505.  Second  class:   Donor  gives   property  in   which  he  has  a  partial 
interest. 

§  488.  The  general  doctrine. 

§  489.  Donor  owns  only  an  undivided  share. 

§  490.  Donor  owns  only  a  future  interest. 

§  491.  Devise  of  lands  encumbered. 


XXX  TABLE    OF    CONTENTS. 

§§492-502.     Dower;    widow's   election   between    dower   and   gifts  by   her   hus- 
band's will. 
§  493.     The  general  rule. 
§  494.     Contrary  legislation  in  various  states. 
■*§§  495-502.     Classes  of  testamentary  dispositions. 
§  496.     Express  declaration. 
§  497.     Devise  of  a  part  of  testator's  land  to  the  widow,  and  the  rest  to 

others. 
§  498.     Devise  to  the  widow  for  life. 
§  499.     Devise  in  trust'  to  sell,  or  with  a  power  of  sale. 
§  500.     Gift  of  an  annuity,  etc.,  to  widow,  charged  upon  the  lands  devised 

to  others. 
§  501.     Devise  with  express  power  of  occupying,  leasing,  etc. 
§  502.     Devise  to  widow  and  others  in  equal  shares. 
§§  503-505.     Election  in  devises  of  community  property. 

§  506.     The  remaining  questions  stated. 
§§507-510.     Who  may  elect;  married  women;  infants;  lunatics. 
§§511,512.     Eights  and  privileges  of  persons  bound  to  elect. 

§  513.     Time  of  election;  state  statutes. 
§§514,515.     Mode  of  election,  express  or  implied;   conduct  amounting  to  an 

election. 
§§  516,  517.     Effects  of  an  election. 
§§518,519.     Equitable  jurisdiction  in  matters  of  election. 


TABLE  Oi'^  CONTENTS.  XXXI 


CONTENTS  OF  VOLUME  II. 


SECTION  TIL 
CONCERNING  SATISFACTION. 

§  520.  Questions  stated. 

§  521.  Definition. 

§§  522-525.  Various  conditions  of  fact. 

§  523.  Eationale   of   the    doctrine. 

§  524.  Ademption  and  satisfaction. 

§  525.  Extrinsic  evidence. 

§  526.  Divisions  of  the  subject. 

§§  527-543.  I.  Satisfaction  of  debts  by  legacies. 

§§  527-540.  Legacy  by  a  debtor  to  his  creditor, 

§§  528-536.  Various   circumstances   which   prevent   the   presumption   of   satis- 
faction. 

§  537,  Direction  in  will  to  pay  debts, 

§  538,  Legacy  in  pursuance  of  agreement,  or  in  express  payment. 

§  539.  Debt  owing  to  a  child  or  wife. 

§  540.  Debt  to  child  satisfied  by  an  advancement. 

§§  541,  542.  Legacy  by  a  creditor  to  his  debtor. 

§  543.  Satisfaction  of  debt,  how  enforced. 

§§  544—552.  II.  Satisfaction  of  legacies  by  subsequent  legacies. 

§  545.  Kule  first :  Specific  legacies. 

§§546-548,  Eule  second:  Legacies  of  quantity  by  different  instruments. 

§  549.  Kule  third:  Legacies  of  equal  amounts  by  the  same  instrument. 

§§550,551.  Eule  fourth:    Legacies  of  unequal  amounts  by  the  same  instru- 
ment, 

§  552.  Extrinsic  evidence. 

§§  553-564,  III,  Satisfaction  of  legacies  by  portions  and  advancement's. 

§  554,  Presumption  of  satisfaction. 

§  555.  Subsequent  gift  less  than  the  legacy. 

§  556.  Person  in  loco  parentis. 

§§  557-560.  Circumstances  which  do  or  do  not  prevent  the  presumption. 

§  559.  Payment  to  husband  of  a  female  legatee. 

§  560.  What  prevents  the  presumption. 

§  561.  Effect  of  a  codicil. 

§  562,  Satisfaction   of  legacies  between  strangers. 

5§  563,  564,  Satisfaction,  when  not  presumed,  but  expressed, 

§§565-568,  IV,  Satisfaction  of  portions  by  subsequent  legacies,  or  other  sim- 
ilar provisions. 

§§  566,  567.  Differences  between  the  gifts  which  do  not  and  which  do  defeat 
the  presumption. 

8  568.  Election  by  the  beneficiary. 


XXXll  TABLE   OF   CONTENTS. 

§§  5&9-577.     V.  Admissibility  and  effect  of  extrinsic  evidence. 

§  570.     General  principles  discussed  and  explained. 
§§  571-575.     When  the  subsequent  benefit  is  given  by  a  writing. 

§  572.     The  writing  expressly  states  the  donor's  intention. 

§  573.     The  writing  silent  as  to   donor's  intention,  and  no  presumption 
arises  from  it 

§  574.     The  writing  silent  as  to  donor's  intention,  but  a  presumption  of 
satisfaction  arises  from  it. 

§  575.     Cases  to  which  the  foregoing  rules  apply. 

§  576.     When  the  subsequent  benefit  is  given  verbally. 

§  577.     Amount  of  evidence. 


SECTION  IV. 
CONCERNING  PERFORMANCE. 

§  678.  EationcUe. 

§  579.  Definition. 

§§  580-583.  I.  Covenant  to  purchase  and  settle  or  convey. 

§  580.  General  rule :  Lechmere  v.  Earl  of  Carlisle. 

§  581.  Forms  of  covenant  to  which  the  rule  applies. 

§  582.  Special  rules. 

§  583.  Such  covenant  creates  no  lien. 

§§  584-586.  II.  Covenant  to  bequeath  personal  property. 

§  584.  General  rule:   Blandy  v.  "W^idmore;   Goldsmid  v.  Goldsmid. 

§  585.  Limitations  on  the  rule;  covenant  must  not  create  a  debt  in  life- 
time of  deceased. 

§586.  A  legacy  not  a  performance;   distinction  between  "performance" 
and  "satisfaction  of  legacy." 

§  687.  Presumption  of  performance  by  trustees. 

§§  588-590.  Meritorious  or  imperfect  consideration;  theory  of. 

§§589,590.  Defective  execution  of  powers;  relief  of. 

§  590.  Requisites  for  such  relief;  a  partial  execution  necessary. 


SECTION  V. 

CONCERNING  NOTICE. 

§  591.  Questions  stated:  Le  Neve  v.  Le  Neve. 

§  592.  Knowledge  and  notice  distinguished. 

§  593.  Kinds;  actual  and  constructive. 

§  594.  Definition. 

§§  595-603.  Actual  notice. 

§  596.  When  shown  by  indirect  evidence. 

§597.  What  constitutes;   rumors;  putting  on  inquiry,  etc. 

§§  598-602.  Special  rules  concerning  actual  notice. 

§  603.  Effect  of  knowledge  instead  of  notice. 


§§  604-609. 

§  605. 

§§606,607. 

§608. 

§  609. 

§§  610-613. 

§§  614-625. 

§§614,615. 

§§616-618. 

§§  619-622. 

§§623,624. 

§625. 

§§  626-631. 

§626. 

§§  627-631. 

§§  632-640. 

§632. 

§§  633,  634, 

§§635,636. 

§§637,638. 

§§  639,640. 

§§  641-643. 

§§  644-665. 

§§  645,646. 

§§  647-649. 

§§  650-654. 

§  655. 

§§  656-658. 

§657. 

§658. 

§§  659,  660. 

§§  661-665. 

§662. 

§§  663,  664. 

§665. 

§§  666-676. 

§§  666-669. 

§§670-675. 

§  670. 

8§  671.672. 

§673. 

§§  674,  675. 

§  676. 

TABLE  OF  CONTENTS.  XXXiil 

Constructive  notice  in  general. 

Jones  V.  Smith,  opinion  of  Wigram,  V.  C 

When  the  presumption  is  rebuttable;  due  inquiry. 

When  it  is  conclusive. 

Species  of  constructive  notice. 

1.  By   extraneous   facts;   acts  of   fraurl,   negligence,   or   mistane; 
general  rule  as  to  putting  on  inquiry;  visible  objects,  etc. 

2.  By  possession  or  tenancy. 
General  rules,  English  and  American. 
Extent  and  effect  of  the  notice. 
Nature  and  time  of  the  possession. 
Whether  the  presumption  is  rebuttable  or  not. 
Possession  by  a  tenant  or  lessee. 

3.  By  recitals  or  references  in  instruments  of  title. 
General  rules. 

Nature  and  extent  of  the  notice;  limitations;  instances,  etc. 

4.  By  lis  pendens. 
Bationale:  Bellamy  v.  Sabine. 
General  rules ;  requisites. 

To  what  kind  of  suits  the  rule  applies. 
What  persons  are  affected. 
Statutory  notice  of  lis  pendens. 

5.  By  judgments. 

6.  By  recording  or  registration  of  instruments. 

(1)  The  statutory  system;  abstract  of  statutes. 

(2)  General  theory,  scope,  and  object  of  the  legislation. 

(3)  Requisites  of  the  record,  in  order  that  it  may  be  a  notice, 

(4)  Of  what  the  record  is  a  notice. 

(5)  To  whom  the  record  is  a  notice. 
Not  to  prior  parties. 

To   subsequent  parties  holding   under  the   same   source   of   title; 
effect  of  a  break  in  the  record. 

(6)  Effect  of  other  kinds  of  notice,  in  the  absence  of  a  record. 

(7)  What  kinds  of  notice  will  produce  this  effect. 
English  rule. 

Conflicting  American  rules;   actual  or  constructive  notice. 
True  rationale  of  notice  in  place  of  a  record. 

7.  Notice  between  principal  and  agent. 
Scope  and  applications. 

Requisites  of  the  notice. 

(1)  Notice  must  be  received  by  agent  during  his  actual  employ- 
ment. 

(2)  And  in  the  same  ttansaction;  when  in  a  prior  transaction. 

(3)  Information  must  be  material;  presumption  that  it  was  com- 
municated to  the  principal. 

Exceptions;  agent's  own  fraud. 
True  rationale  of  this  rule. 


XXXIV  TABLE   OF   CONTENTS. 

SECTION  VI. 
CONCERNING  PRIORITIES. 

§  677.  Questions  stated. 

§§  678-692.  First.  The  fundamental  principles. 

§§  679-681.  I.     Estates  and  interests  to  which  the  doctrine  applies. 

§  682.  II.     Equitable  doctrine  of  priority,  in  generaL 

§§  683-692.  in.     Superior  and  equal  equities. 

§  683.  When  equities  are  equal. 

§§  684-692.  Superior  equities  defined  and  described. 

§  685.  1.  From  their  intrinsic  nature. 

§§686,687.  2.  From  the  effects  of  fraud  and  negligence. 

§§  688-692.  3.  From  the  effects  of  notice. 

§  688.  General  rules  and  illustrations. 

§  689.  Notice  of  a  prior  covenant. 

§§  690-692.  Time  of  giving  notice,  and  of  what  it  consists. 

§§  693-734.  Second.     Applications  of  these  principles. 

§§  693-715.  Assignments  of  things  in  action. 

§  693.  Dearie  v.  Hall. 

§§  694-696.  I.     Notice  by  the  assignee. 

§  694.  Notice  to  debtor  not  necessary  as  between  assignor  and  assignee, 

§§  695-697.  English  rule,  notice  to  debtor  necessary  to  determine  the  priority 

among  successive  assignees. 

§§  698-702.  II.     Diligence  of  the  assignee. 

§  698.  General  rules :  Judson  v.  Corcoran. 

§§  699-701.  Assignment  of  stock  as  between  assignee  and  assignor  and  tha 
company,  judgment  creditors  of  assignor,  and  subsequent  pur- 
chasers. 

§  702.  Notice  to  the  debtor  necessary  to  prevent  his  subsequent  acts. 

§§  703-715.  m.     Assignments  of  things  in  action  subject  to  equities. 

§§  704-706.  1.  Equities  in  favor  of  the  debtor, 

§  704.  General  rule:   assignments  of  mortgages;  kinds  of  defenses. 

§§  705,  706.  Provisions  in  codes  of  procedure. 

§§  707-713.  2.  Equities  bet-ween  successive  assignors  and  assignees. 

§  707.  Conflicting  decisions;   mode  of  reconciling. 

§§708,709.  General  rule:   assignment  subject  to  latent  equities;  illustrations. 

§§  710,711.  When  the  rule  does  not  apply;  effect  of  estoppel;  true  limits  of 
the  estoppel  as  applied  to  such  assignments. 

§  712.  Subsequent  assignee  obtaining  the  legal   title   protected   as   a 
bona   fide  purchaser. 

§  713.  Successive  assignments  by  same  assignor  to  different  assignees. 

§§  714,  715.  3.  Equities  in  favor  of  third  persons. 

§  714.  General  rule:  assignments  subject  to  such  equities. 

§  715.  Contrary  rule:  assignments  free  from  all  latent  equities. 

,?§  716-732.  Equitable  estates,  mortgages,  liens,  and  other  interests. 

§  717.  Doctrine  of  priorities  modified  by  recording  acts, 

§§  718,  719.  I.     Priority  of  time  among  equal  equities. 

§  719.  Illustrations:   simultaneous  mortgages,  substituted  liens,  etft. 


TABLE  OP  CONTENTS.  XXXV 

§§  720-726.  II.  One  equity  intrinsically  the  superior. 

§  720.  Prior  geTieral  and  subsequent  specific  lien. 

§§  721,  722.  Prior  unrecorded  mortgage  and  subsequent  docketed  judgment. 

§  723.  Same,  where  judgment  creditor  had  notice. 

§  724.  Prior  unrecorded  mortgage  and  purchase  at  execution  sale  under 
a  subsequent  judgment. 

§  725.  Purchase  money  mortgages. 

§  726.  Other  illustrations. 

§§  727-729.  III.     A  subsequent  equity  protected  by  obtaining  the  legal  title. 

§  728.  Legal  estate  obtained   from  a  trustee. 

§  729.  Legal   estate   obtained   after  notice   of  prior   equity. 

§  730.  IV.     Notice  of  existing  equities. 

§§731,732.  V.     Effect  of  fraud  or  negligence  upon  priorities. 

§§  733,  734.  Assignments  of  mortgages,  rights  of  priority  depending  upon 
them. 

SECTION  VIL 

CONCERNING    BONA    FIDE    PURCHASE    FOR    A    VALUABLE 
CONSIDERATION  AND  WITHOUT  NOTICE. 

§  735.     General  meaning  and  scope  of  the  doctrine. 

§  736.     General  effect  of  the  recording  acts. 
§§  737-744.     First.     Bationaie  of  the   doctrine. 

§  738.     Its  purely  equitable  origin,  nature,  and  operation. 

§  739.     It  is  not  a  rule  of  property  or  of  title. 
§§740,741.     General  extent  and  limits;  kinds  of  estates  protected. 
§§742,743.     Phillips  v.  Phillips;   formula  of  Lord  Westbury. 
§§  745-762.     Second.     What  constitutes  a  bona  fide  purchase. 
§§  746-751.     I.     The  valuable  consideration. 

§  747.     1.  What  is  a  valuable  consideration ;   illustrations. 
§§  748,  749.     Antecedent  debts,  securing  or  satisfying;   giving  time,  etc 
§§750,751.     2.  Payment;  effect  of  part  payment;  giving  security. 
§§  752-761.     II.     Absence  of  notice. 

§  753.     1.  Effects  of  notice  in  general. 

§  754.     Second  purchase  without  notice   from  first  purchaser  with,  also 
second  purchaser  ivith  from  first  purchaser  without  notice. 

§755.     2.  Time  of  giving  notice;   English  and  American  rules. 

§  756.     Effect  of  notice  to  a  hoiia  fide  purchaser  of  an  equitable  interest 
before  he  obtains  a  deed  of  the  legal  estate. 
§§  757-761.     3.  Eecording  in  connection  with  notice. 

§  758.     Interest  under  a  prior  unrecorded  instrument. 

§  759.     Requisites  to   protection  from  the  first  record  by  a  subsequent 
purchaser. 

§  760.     Purchaser    in    good    faith    with    apparent    record    title    from    a 
grantor  charged  with  notice  of  a  prior  unrecorded  conveyance. 

§761.     Break  in  the  record  title;   when  purchaser  is  still  charged  with 
notice  of  a  prior  instrument. 

§  762.     III.     Good    faith. 


XXX VI  TABLE    OF   CONTENTS. 

§§  7G3-778.     Third.     Effects  of  a  bona  fide  puiclmse  as  a  defense. 

§  764.     I.     Suits  by  holder  of  legal  estate  under  the  auxiliary  jurisdic- 
tion  of  equity,   discovery,  etc. 

§  765.     Same:   exceptions  and  limitations. 
§§  766-774.     II.     Suits  by  holder  of  an  equitable  estate  or  interest  against  a 
purchaser  of  the  legal  estate. 

§  767.     Legal  estate  acquired  by  the  original  purchase. 

§  768.     Purchaser    first    of    an    equitable    interest    subsequently    acquires 
the  legal  estate;   tabula  in  naufragio. 

§  769.     Extent  and  limits  of  this  rule. 

§  770.     Purchaser  acquires  the  legal  estate  from  a  trustee. 
§§  771-773.     The  rule  as  applied  in  the  United  States. 

§  774.     Other  instances;   purchase  at  execution  sale;   purchase  of  things 
in  action. 
§§  775-778.     IIT.     Suits  by  holders  of  an  "equity." 

§  776.     For  relief  against  accident  or  mistake. 
§§  777,  778.     For  relief  from  fraud,  upon  creditors,  or  between  parties. 
§§  779-783.     Fourth.     Affirmative  relief  to  a  bana  fide  purcliaser. 

§  779.     General  rule. 
§§  780-782.     Illustrations. 

§  783.     Kemoving  a  cloud  from  title. 
§§  784,  785.     Fifth.     Mode  and  form  of  the  defense. 

§  784.     The  pleadings. 

§  785.     Necessary  allegations  and  proofs. 


SECTION  VIII. 

CONCERNING  MERGER. 

§  786.  Origin  and  nature  of  the  doctrine. 

§§  787,  788.  First.     Merger  of  estates. 

§  787.  I.  The  legal  doctrine. 

§  788.  II.  The    equitable    doctrine. 

§§  789-800.  Second.     Merger   of   charges. 

§  790.  I.  The  owner  of  the  property  becomes  entitled  to  the  charge. 

§  791.  Same.     Intention  prevents  a  merger. 

§  792.  Time  and  mode  of  expressing  the  intention. 

§793.  Conveyance   to  the  mortgagee;    assignment  to  the   mortgagor   or 
to  his  grantee. 

§  794.  Merger  never  prevented  when  fraud  or  wrong  would  result. 

§  795.  Life  tenant  becomes  entitled  to  the  charge. 

§  796.  II.  The  owner  of  the  land  pays  off  a  charge  upon  it. 

§  797.  Owner  in  fee  personally  liable  for  the  debt  pays  off  a  charge. 

§  798.  Owner  who  is  not  liable  for  the  debt  pays  off  a  charge. 

§  799.  Life  tenant  pays  off  a  charge. 

§  800.  Priorities  affected  by  merger. 


TABLE  01-'  C0^TE2sTS.  XXXVll 

SECTION  IX. 

CONCERNING  EQUITABLE  ESTOl'l^l^L. 

§  801.  Nature  of  the  rights  created  by  estoppel. 

§  802.  Origin  of  equitable  estoppel. 

§  803.  How    far   fraud   is   essential   in   equitable   estoppels. 

§  804.  Definition. 

§  805.  Essential  elements  constituting  the  estoppel. 

§  806.  Theory  that  a  fraudulent  intent  is  essentinl. 

§  807.  Fraudulent   intent   necessary   in  an   estoppel    affecting   the   legal 
title  to  land. 

§§  808-812.  Ecquisites  further  illustrated. 

§  808.  The  conduct  of  the  party  estopped. 

§  809.  Knowledge  of  the  truth  by  the  party  estopped, 

§  810.  Ignorance  of  the  truth  by  the  other  party. 

§  811.  Intention  by  the  party  who  is  estopped. 

§  812.  The  conduct  must  be  relied  upon,  and  be  an  inducement  for  the 
other  party  to  act. 

§  813.  Operation  and  extent  of  the  estoppel. 

§  814.  As  applied  to  married  women. 

§  815.  As  applied  to  infants. 

§§  816-821.  Important  applications  in  equity. 

§  816.  Acquiescence. 

§  817.  Same:  as  preventing  remedies. 

§  818.  Same:  as  an  estoppel  to  rights  of  property  and  contract. 

§  819.  As  applied  to  corporations  and  stockhclders. 

§  820.  Other  instances  of  acquiescence. 

§  821.  Owner  estopped  from  asserting  his  legal  title  to  land. 


CHAPTER  THIRD. 

CERTAIN  FACTS  AND  EVENTS  WHICH  ARE  THE  OCCASIONS 
OF  EQUITABLE  PRIMARY  OR  REMEDIAL  RIGHTS. 
§  822.     Introductory  paragraph. 

SECTION  I. 

ACCIDENT. 

§  823.  Definition. 

§  824.  Eationale  of  the  jurisdiction. 

§  825.  General  limitations  on  the  jurisdiction. 

§§  826-829.  Instances  in  which  the  jurisdiction  does  not'  exist. 

§  826.  Non-performance  of  contracts. 

§  827.  Supplying  lost  or  destroyed  records. 


XXXVlll 

§828. 

§829. 

§§  830-837. 

§831. 

§832. 

§833. 

§834. 

§835. 

§836. 

§837. 

TABLE    OF    CONTENTS. 

Other  special  instances. 

Parties  against  whom  the  jurisriiction  is  not  exercised* 

Particular  instances  of  the  jurisdiction. 

1.  Suits  on  lost  instrument's. 
Same;   instruments  not  under  seal. 

2.  Accidental  forfeitures. 

3.  Defective  execution  of  powers. 
Powers  held  in  trust  will  be  enforced, 

4.  Belief  against  judgments  at  law. 

5.  Other  special  instances. 


SECTION  n. 

MISTAKE. 

§  838.     Origin  and  purpose  of  this  jurisdiction, 
§  839.     I.  Definition. 
§§  840-856.     II.  Various    kinds   of   mistakes   which   furnish    an   oeeasiO'n   for 

relief. 
§§  841-851.     First.     Mistakes  of  law. 

§  842.     The  general  rule  and  its  limitations. 

§  843.     Mistake  as  to  the  legal  import  or  effect  of  a  transaction. 
§§  844-851.     Particular  instances  in  which  relief  will  or  will  not  be  granted. 
§  845.     Eeformation  of  an  instrument  on  account  of  a  mistake  of  law. 
§846.     Mistake  common  to  all  the  parties:   mistake  of  a  plain  rule. 
§  847.     Mistake   of   law    accompanied    with   inequitable   conduct   of   the 

other  party. 
§  848.     Same :   between  parties  in  relations  of  trust. 
§  849.     Belief  where  a  party  is  mistaken  as  to  his  own  existing  legal 

rights,   interests,   or  relations. 
§  850.     Compromises  and  voluntary  settlements  made  upon  a  mistake  as 

to  legal  rights. 
§  851.     Payments  of  money  under  a  mistake  of  law, 
§§  852-856.     Second,     Mistakes  of  fact. 

§  853.     How  mistakes  of  fact  may  occar. 
§  854.     In  what  mistakes  of  fact  may  consist. 
§  855.     Compromises  and  speculative  contracts. 

§856.     Eequisites  to   relief;    mistake  must  be  material   and   free   from 
culpable  negligence. 
§§857-867.     III.  How  mistake  may  be  shown:  when  by  parol  evidence. 

§  858.     Parol  evidence  in  general  in  cases  of  mistake,  fraud,  or  surprise. 
§  859.     In  suits  for  a  reformation  or  cancellation:  character  and  effect  of 

the  evidence. 
§  860.     Parol  evidence  in  defense  in  suits  for  a  specific  performance. 
§  861.     Parol  evidence  of  mistake  on  the  plaintiff's  part  in  suits  for  a 

specific  performance:  English  rule. 
§862.     Same:   American  rule :   evidence  admissible. 
§  863.     Evidence  of  a  parol  variation  which  has  been  part  performed. 


TABLE  or  CONTENTS.  XXXIX 

§§  864-867.     Effect  of  the  statute  of  frauds  upon  the  use  of  parol  evidence  in 

equitable  suits. 
§  865.     Two  classes  of  cases  in  which  the  use  of  parol  evidence  may  be 

affected  by  the  statute. 
§  866.     General  doctrine:   parol  evidence  of  mistake  or  fraud  admissible 

in  both  these  classes  of  cases. 
§  867.     Glass  v.  Hulbert :   examination  of  proposed  limitations  upon  this 

general  doctrine. 
§§  868-871.     rv.  Instances  of  equitable  jurisdiction   occasioned   by  mistake. 
§  868.     When  exercised  by  way  of  defense. 

§  8'69.     By  way  of  affirmative  relief :  recovery  of  money  paid  by  mistake. 
§870.     Affirmative  relief:   reformation  and  cancellation. 
§  871.     Ck)uditions  of  fact  which  are  occasions  for  affirmative  relief. 


SECTION  in. 

ACTUAL  FRAUD. 

§  872.  Objects  and  purposes. 

§873.  Description;   essential  elements. 

§  874.  Four  forms  and  classes  of  fraud  in  equity. 

§  875.  Nature  of  actual  fraud. 

§§  876-899.  First.     Misrepresentations. 

§  877.  I.  The  form ;  an  affirmation  of  fact. 

§  878.  Misrepresentation  of  matter  of  opinion. 

§  879.  II,  The  purpose  for  which  the  representation  is  made. 

§  880.  Presumption  of  the  purpose  to  induce  action. 

§  881.  False  prospectuses,  reports,  and  circulars. 

§  882.  III.  Untruth  of  the  statement. 

§§  883-889.  IV.  The  intention,  knowledge,  or  belief  of  the  party  making  the 
statement. 

§  884.  The  knowledge  and  intention  requisite  at  law. 

§  885.  The  knowledge  or  intention  requisite   in  equity. 

§§  886-888.  Six  forms  of  fraudulent  misrepresentations  in  equity. 

§  889.  Eequisites   of  a  misrepresentation   as   a   defense   to  the   specifle 
enforcement  of  contracts  in  equity. 

J§  890-897.  V.  Effect  of  the  representation  on  the  party  to  whom  it  is  made. 

§  890.  He  must  rely  on  it. 

§  891.  He  must  be  justified  in  relying  on  it. 

§  892.  When  he  is  or  is  not  justified  in  relying  on  it. 

§  893.  Information  or  means  of  obtaining  information  possessed  by  the 
parties  receiving  the  representation. 

§894.  Knowledge  possessed  by  him;  patent  defects. 

§  895.  When   the   knowledge   or   information   must  be   proved   and   not 
presumed. 

§  896.  Words  of  general  caution. 

S  897.  Prompt  disaffirmance  necessary. 


Xl  TABLE  OF  CONTENTS. 

§  898.     VI.  Materiality  of  the  misrepresentation. 

Effects  of  a  misrepresentation. 

Second.     Fraudulent  concealments. 

General  doctrine;   duty  to   disclose. 

When  duty  to  disclose  exists. 

Concealments  by  a  vendee. 

Concealments  by  a  vendor. 

Non-disclosure  of  facts  a  defense  to  the  specijBc  enforcement  of 
contracts  in  equity. 

Concealments  by  buyers  on  credit. 

Contracts  and  transactions  essentially  fiduciary;    suretyship. 

Liability  of  principals  for  the  fraud  of  their  agents. 

Third.     Jurisdiction  of  equity  in  cases  of  fraud. 

Fundamental  principles  of  the  jurisdiction. 

The   English   doctrine. 

Exception :  fraudulent  wills. 

The  American  doctrine. 

Incidents  of  the  jurisdiction  and  relief. 

The  same;  plaintiff  particeps  doli;  ratification. 

The  same;  promptness;   delay  through  ignorance  of  the  fraud. 

Persons  against  whom  relief  is  granted;  tona  fide  purchasers. 

Particular  instances  of  the  jurisdiction;  judgments;  awards; 
fraudulent  devises  and  bequests;  preventing  acts  for  the  bene- 
fit of  others;   suppressing  instruments. 

The  same;  appointment  under  powers;  marital  rights;  trusts. 

The  statute  of  frauds  not  an  instrument  for  the  accomplishment 
of    fraud. 

SECTION  IV. 

CONSTRUCTIVE  FRAUD. 

§  922.     Definition :  essential  elements. 
§  923.     Three  principal  classes. 
§§  924-942,     First.     Constructive  fraud  apparent  from  the  intrinsic  nature  and 

subject  of  the  transaction  itself. 
§  925.     I.  Inadequacy  of    consideration. 
§  926.     Inadequacy  pure  and   simple. 
§  927.     Gross  inadequacy  amounting  to  fraud. 
§  928.     Inadequacy   coupled   with   other   inequitable   incidents. 
§§  929-936.     II.  Illegal  contracts  and  transactions. 

§  930.     1.  Contracts  illegal  because  contrary  to  statute:   usury,   gaming, 

smuggling. 
§§  931-935.     2.  Transactions  illegal  because  opposed  to  public  policy. 

§  931.     A.  Contracts  interfering  with  the  freedom  of  marriage ;  marriage 

brokerage;    in   restraint   of   marriage;    rewards    for   marriage; 

secret   contracts   in   fraud   of   marriage;    secret   contracts    to 

marry ;   rewards  for  procuring  wills. 
§  932.     Agreements  for  a  separation. 


§899. 

900-907. 

§901. 

§902. 

§903. 

§904. 

§905. 

§906. 

§907. 

908,  909. 

910-921. 

§911. 

§912. 

§913. 

§914. 

§  915. 

§916. 

§917. 

§918. 

§919. 

§920. 

§921. 

TABLE  OF  CONTENTS.  xli 

§  933.     B.  Conditions  and  limitations  in  restraint  of  marriage. 

§  934.  C.  Contracts  directly  belonging  to  and  affecting  business  rela- 
tions; restraint  of  trade;  interfering  with  bidding  at  auctions 
and  governmental  lettings;  puflfers;  fraudulent  trade-marks; 
violating  policy  of  statutes  prescribing  business  methods; 
trading   with    alien    enemies. 

§  935.  D.  Contracts  affecting  public  relations;  interfering  with  the 
election  or  appointment  of  officers;  interfering  with  legislative 
proceedings;  ditto,  executive  proceedings;  ditto,  judicial  pro- 
ceedings. 

§936.     3.  Contracts  illegal  because   opposed   to  good   morals;    for   illicit 
intercourse;    champerty    and    maintenance;    compounding   with 
a  felony  or  preventing  a  prosecution. 
§  937-942.     III.  Equitable  jurisdiction   in  case  of  illegal  contracts. 

§  937.     In  usurious  contracts;  usurious  mortgages. 

§  938.     In  gaming  contracts. 

§939.     In   other  illegal  contracts;   explanation  of   maxim,  In  pari,  etc. 

§  940.     In    pari    delicto,    general   rules. 

§  941.     In  pari  delicto,  limitations  on  general  rules. 

§  942.     Not  in  pari  delicto. 
i  943-965.     Second.     Constructive  fraud  inferred  from  the  condition  and  rela- 
tions of  the  immediate  parties  to  the  transaction. 

§  943.     General  description  and  divisions. 
I  944-954.     1.  Transactions  void  or  voidable  with  persons  wholly  or  partially 
incapacitated. 

§  945,     Coverture ;   infancy. 

§  946.     Insanity. 

§  947.     Mental  weakness. 

§  948.     Persons  in  vinculis;  ditto,  illiterate  or  ignorant. 

§  949.     Intoxication. 

§  950.     Duress. 

§  951.     Undue  influence. 

§  952.     Sailors. 

§  953.     Expectants,  heirs,  reversioners. 

§  954.     Post  ohit  contracts. 
955-965.     II.  Transactions  presumptively  invalid   between  persons  in  fidu- 
ciary relations. 

§  955.     Circumstances  to  which  the  principle  applies. 

§  956.     The  general  principle. 

§  957.     Two  classes  of  cases  in  which  it  operates. 

§  958.     Trustee  and  beneficiary. 

§  959.     Principal  and   agent. 

§  960.     Attorney  and  client. 

§  961.     Guardian  and  ward. 

§  962.     Parent  and  child. 

§963.  Other  relations:  executors  and  administrators;  physician  and 
patient;  spiritual  advisers;  husband  and  wife;  partners,  etc. 


Xlii  TABLE  OF  CO:s' TENTS. 

§964,  Confirmation  or  ratification. 

§  965.  Acquiescence  and  lapse  of  time. 

5§  966-974.  Third.     Frauds  against  third  persons  who  are  not  parties  to  the 
transaction. 

§  967.  Secret  bargains  accompanying  compositions  with  creditors, 

§  968.  Conveyances  in   fraud   of   creditors. 

§  969.  The  consideration. 

§  970.  The  fraudulent  intent. 

§  971.  Modes  of  ascertaining  the  intent. 

§  972.  Existing  creditors. 

§  973.  Subsequent  creditors. 

S  974.  Conveyances  in  fraud  of  subsequent  purchasers. 


TABLE  Oi'  CONTENTS.  xHi) 

CONTENTS  OF  VOLUME  IH. 


PART  THIRD. 

THE  EQUITABLE  ESTATES,  INTERESTS,  AND  PRIMARY 
RIGHTS  RECOGNIZED  AND  PROTECTED  BY  THE 
EQUITY  JURISPRUDENCE. 

§  975.    Preliminary    paragraph. 

CHAPTER  FIRST. 

TRUSTS. 

SECTION  I. 
ORIGIN  OF  USES  AND  TRUSTS. 

§  976.  The  testament  in  the  Roman  law. 

§  977.  Fidei  commissa  in  the  Boman  law. 

§  978.  Origin  of  uses. 

§  979.  The  use  at  law. 

§  980.  The  use  in  equity. 

§981.  Resulting  uses;   equitable  theory  of.  consideration. 

§  982.  Double  nature  of  property  in  land,  the  use  and  the  seisin. 

§  983.  The  "statute  of  uses." 

§  984.  Kinds  of  uses  not  embraced  within  the  statute. 

§  985.  A  use  upon  a  use  not  executed  by  the  statute. 

S  986.  Trusts  after  the  statute;  eflfect  of  the  statute  in  the  American 
states. 

SECTION  II. 

EXPRESS  PRIVATE  TRUSTS. 

§  987.  Classes  of  trusts. 

5§  988-990.  Express  passive  trusts. 

§  989.  Estates  of  the  two  parties ;  liability  for  beneficiary's  debts,  etc. 

§  990.  Rules  of  descent,  succession,  and  alienation. 

§§  991-995.  Express  active  trusts. 

§  992.     Classes  of  active  trusts. 

§  993.  Voluntary    assignments    for    the  benefit    of    creditors;    English 
doctrine. 

§  994.  The  same;  American  doctrine. 

§  995.  Deeds  of  trust  to  secure  debts. 

6§  996-999.  Voluntary   trusts. 

§  997.  The  general  doctrine ;   incomplete  voluntary  trusts  not  enforced. 


xIjv  table  of  contents. 

§  908.  When  the  donor  is  the  legal  owner. 

§  999.  When  the  donor  is  the  equitable  owner. 

§§1000,1001.  Executed  and  executory  trusts. 

§  1001.  Definition  and  description. 

§  1002.  Powers  in  trust. 

§§  1003-1005.  Legislation   of  various   states. 

§  1004.  Judicial  interpretation;  validity  of  trusts. 

§  1005.  Interest,  rights,  and  liabilities  of  the  beneficiary. 

SECTION  III. 

HOW  EXPRESS  TRUSTS  ARE  CREATED. 

§  1006.     Trusts  of  real  property;   statute  of  frauds;   writing  necessary. 
§  1007.     Written    declaration   by    the    grantor;    ditto,   by    the    trustee; 

examples. 
§  1008.     Trusts   of   personal    property   may   be   created    verbally;    what 
trusts  are  not  within  the  statute. 
Words  and   dispositions  sufficient  to  create  a  trust ;   examples. 
Express  trusts  inferred  by  construction,  sometimes  improperly 
called  "implied  trusts." 

1.  From  the  powers  given  to  the  trustee. 

2.  Provisions  for  maintenance;   examples. 

3.  To  carry  out  purposes  of  the  will. 

4.  From  "precatory"  words;  Knight  v.  Knight;  examples. 
Modern  tendency  to  restrict  this  doctrine;  in  the  United  States. 
What    intention    necessary    to    create    the    trust;    the    general 

criterion ;  examples. 
§  1017.     Objections  to  the  doctrine. 

SECTION  IV. 

PUBLIC  OR  CHARITABLE  TRUSTS. 

§  1018.  General  description. 

§  1019.  A  public,  not  a  private,  benefaction  requisite. 

§  1020.  What  are  charitable  uses  and  purposes:  "Statute  of  charitable 

uses." 

1021-1024.  Classes  of  charitable  uses. 

§  1021.  1.  Religious  purposes. 

§  1022.  2.  Benevolent  purposes. 

§  1023.  3.  Educational  purposes. 

§  1024.  4.  Other  public  purposes. 

§1025.  Creation  of  the  trust:   certainty  or  uncertainty  of  the  object 

and  of  the  bene"ficiaries. 

§  1026.  Certainty  or  uncertainty  of  the  trustees. 

§  1027.  The  doctrine  of  cy-pres. 

§  1028.  Origin  and  extent  of  the  equitable  jurisdiction. 

§  1029.  Charitable  trusts  in  the  United  States. 


§  1009. 

0-1017. 

§1011. 

§  1012. 

§  1013. 

§  1014. 

§  1015. 

§  1016. 

TABLE  OF  CONTENTS.  xlv 

SECTION  V. 

TRUSTS  ARISING  BY  OPERATION  OF  LAW— RESULTING  AND 
CONSTRUCTIVE  TRUSTS. 

§  10'30.  General  nature  and  kinds. 

§§  1031-1043.  First.     Kesulting  trusts. 

§§1032-1036.  First  form:   trusts  resulting  to  donor. 

§  1032.  1.  Property  conveyed  on  some  trust  which  fails. 

§  1033.  Same;   essential  elements. 

§  1034.  2.  A  trust  declared  in  part  only  of  the  estate  conveyed. 

§  1035.  3.  In  conveyances  without  consideration. 

§  1036.  Parol  evidence, 

§§  1037-1043.  Second  form:  conveyance  to  A,  price  paid  by  B. 

§  1038.  Special  rules. 

§  1039.  Purchase  in  name  of  wife  or  child. 

§  1040.  Admissibility  of  parol  evidence. 

§  1041.  The  same;   between  family  relatives. 

§  1042.  Legislation  of  several  states. 

§  1043.  Interest  and  rights  of  the  beneficiary. 

§§  1044-1058.  Second.     Constructive  trusts. 

§  1045.  Kinds  and  classes. 

§  1046.  1.  Arising  from  contracts  express  or  implied. 

§  1047.  2.  Money  received  equitably  belonging  to  another. 

§  1048.  3.  Acquisition  of   trust  property  by  a  volunteer,   or  purchaser 
with  notice. 

§  1049.  4.  Fiduciary  persons  purchasing  property  with   trust   funds. 

§  1050.  5.  Renewal  of  a  lease  by  partners  and  other  fiduciary  persons. 

§  1051.  6.  Wrongful  appropriation  or  conversion  into  a  different  form 
of  another's  property. 

§  1052.  7.  Wrongful  acquisition  of  the  trust  property  by  a  trustee  or 
other  fiduciary  person. 

§  1053.  8.  Trusts   ex  maleficio. 

§  1054.  (1)  A  devise  or  bequest  procured  by  fraud. 

§  1055.  (2)   Purchase  upon  a  fraudulent  verbal  promise. 

§  1056.  (3)   No  trust  from  a  mere  verbal  promise. 

§  1057.  9.  Trust  in  favor  of  creditors. 

§  1058.  Eights  and  remedies  of  the  beneficiaries, 

SECTION  VI. 
POWERS,  DUTIES,  AND  LIABILITIES  OF  EXPRESS  TRUSTEES. 

§  1059.  Divisions. 

§  1060.  First.     Powers  and  modes  of  acting. 

§§  1061-1083.  Second.     Duties   and  liabilities. 

§§  1062-1065.  I.  To  carry  the  trust  into  execution. 

§  1062.  1.  The  duty  to  conform  strictly  to  the  directions  of  the  trust. 


§  1063. 

§  1064. 

§  1065. 

§§  106&-1074. 

§  1067. 

§  1068. 

§  1069. 

§  1070. 

§  1071. 

1  1072. 

§  1073. 

§  1074. 

fiS  1075-1078. 

§  1075. 

§  1076. 

§  1077. 

Xlvi  TABLE  OF  CONTENTS. 

2.  The  duty  to  account. 

3.  The  duty  to  obey  directions  of  the  court. 

4.  The  duty  to  restore  the  trust  property  at  the  end  of  th« 
trust. 

II.  To  use  care  and  diligence. 

1.  The  duty  of  protecting  the  trust  property. 

2.  The  duty  not  to  delegate  his  authority. 

3.  The  duty  not  to  surrender  entire  control  to  a  eo-trustee. 

4.  The  amount  of  care  and  diligence  required. 

5.  The  duty  as  to  investments. 
The  necessity  of  making  investments. 
Kinds  of  investments:  When  particular  securities  are  expresslj 

authorized. 
The  same:  When  no  directions  are  given. 

III.  To  act  with  good  faith. 

1.  The  duty  not  to  deal  with  the  trust  property  for  his  own 
advantage. 

2.  The  duty  not  to  mingle  trust  funds  with  his  own. 

3.  The  duty  not  to  accept  any  position,  or  enter  into  any  re- 
lation, or  do  any  act  inconsistent  with  the  interests  of  th«e 
beneficiary. 

§  1078.  4.  The  duty  not  to  sell  trust  property  to  himself,  nor  to  buy 
from  himself. 

§S  1079-1083.  rv.  Breach  of  trust,  and  liability  therefor. 

§  1080.  Nature  and  extent  of  the  liability. 

§  1081.  Liability  among  co-trustees. 

§  1082.  Liability  for  co-trustees. 

§  1083.  The  beneficiary  acquiescing,  or  a  party  to  the  breach  of  trust. 

5  1084.  Third.     The  trustee's  compensation  and  allowances. 

§  1085.  Allowances  for  expenses  and  outlays;  lien  therefor. 

§  1086.  Fourth.     Removal  and  appointment  of  trustees. 

S  1087.  Appointment  of  new  trustees. 

SECTION  VII. 

CORPORATION  DIRECTORS  AND  OTHER  QUASI  TRUSTEES. 

§  1088.  Quasi  trustee;   fiduciary  persons. 

§  1089.  Corporation  directors  and  officers. 

§  109O.  Trust  relations  in  stock  corporations. 

§  1091.  Liability  of  directors  for  a  violation  of  their  trust. 

§  1092.  First  class:  Directors  guilty  of  fraudulent  misrepresentations, 

etc. 

§  1093.  Second  class:   Ultra  vires  proceedings  of  directors. 

§  1094.  Third  class :  Wrongful  dealing  vdth  corporate  property. 

§  1095.  Fourth  class:  The  same;  the  corporation  refuses  to  sue. 

§  1096.  Special  classes. 

§  1097.  Guardians. 


TABLE  OF  CONTENTS.  xlvii 

CHAPTER  SECOND. 

ESTATES  AND  INTERESTS  OF  MARRIED  WOMEN. 

SECTION  I. 

THE  SEPARATE  ESTATE  OF  MARRIED  WOMEN. 

§  1098.  Origin  and  general  nature. 

§  1099.  Statutory  legal  separate  estate  in  the  United  States. 

§  1100.  How  the  separate  estate  is  created;  trustees  not  necessary. 

§  1101.  The  same:  By  what  modes  and  instruments. 

§  1102.  The  same:  What  words  are  sufficient. 

§  1103.  What  property  is  included. 

§  1104.  Her  power  of  disposition. 

§  1105.  The  same  in  the  United  States. 

§  1106.  Her  disposition  under  a  power  of  appointment, 

§  1107.  Eestraints  upon  anticipation. 

§  1108.  What  words  are'  sufficient  to  create  a  restraint. 

§  1109.  Effect  of  the  restraint. 

§  1110.  End  of  the  separate  estate;  its  devolution  on  the  wife's  ^eatk. 

§  1111.  Pin-money. 

§  1112.  Wife's  paraphernalia. 

§  1113.  Settlement  or  conveyance  by  the  wife  in  fraud  of  the  marriage. 

SECTION  n. 

THE  WIFE'S  EQUITY  TO  A  SETTLEMENT. 

§  1114.  General  nature. 

§1115.  Extent   of   the  wife's   equity:    to  what  property  and  agaiBst 

what  person. 

§  1116.  When  the  equity  does  not  arise. 

§  1117.  Amount  of  the  settlement. 

§  1118.  Form  of  the  settlement. 

§  1119.  Maintenance  of  wife. 

§  1120.  Alimony. 

SECTION  III. 

THE  CONTRACTS  OF  MARRIED  WOMEN. 

§  1121.  The  general  doctrine. 

§  1122.  Eationale  of  the  doctrine. 

§  1123.  Extent  of  the  liability. 

§  1124.  For  what  contracts  her  separate  estate  is  liable. 

§  1125.  The  same;  the  American  doctrine. 

§  1126.  To  what  contracts  the  American  doctrine  applies. 


XlVlJi  TABLE  OF  CONTENTS. 


CHAPTER  THIRD. 

ESTATES  AND  INTERESTS  ARISING  FROM  SUCCESSION  TO  A 

DECEDENT. 

SECTION  I. 

LEGACIES. 

§  1127.  Jurisdiction  of  equity. 

§  1128.  The  same:   where  originally  exclusive. 

§  1129.  The  same:  in  the  United  States. 

§§  1130-1134.  Kincis  of  legacies. 

§  1130.  Specific  legacies. 

§  1131.  Ademption  of  specific  legacies. 

§  1132.  General  legacies. 

§  1133.  Demonstrative  legacies. 

§  1134.  Annuities. 

§§  1135-1143.  Abatement  of  legacies. 

§  1135.  Abatement  in  general:  order  of  appropriating  assets. 

§  1136.  Nature  of  abatement. 

§  1137.  Abatement  of  specific  legacies. 

§  1138.  Abatement  of  demonstrative  legacies. 

§  1139.  Abatement  of  general  legacies. 

§  1140.  Limitations;  intention  of  testator. 

§1141.  Exceptions;  legacies  to  near  relatives. 

§  1142.  The  same;  legacy  for  a  valuable  consideration. 

§  1143.  Appropriation  of  a  fund. 

§  1144.  Lapsed  legacies. 

§  1145.  The  same;  statutory  changes. 

SECTION  n. 

DONATIONS  CAUSA  MORTIS. 

§  1146.  General  nature. 

§  1147.  Is  not  testamentary. 

§  1148.  The  subject-matter  of  a  valid  gift. 

§  1149.  Delivery. 

§  1150.  Eevocation. 

§  1151.  Equitable  jurisdiction. 

SECTION  III. 

ADMINISTRATION  OF  ESTATES. 
§  1152.     Equitable  jurisdiction  in  the  United  StatM. 
§  1153.     The  same;  fundamental  principle;  Eosenburg  v.  Frank. 
§  1154.     The  jurisdiction  as  administered  in  the  several  states;  general 
resume — the  states  alphabetically  arranged  in  foot-note. 


TABLE  OF  CONTEXTS.  xlix 

SECTION  IV. 

CONSTRUCTION  AND  ENFORCEMENT  OF  WILLS. 
§  1155.     Origin  of  the  jurisdiction. 

§  1156.     Extent  of  the  jurisdiction;  a  branch  of  that  over  trusts. 
§  1157.     The  same;  a  broader  jurisdiction  in  some  states. 
§  1158.     Suit  to  establish  a  wiU. 


CHAPTER  FOURTH. 

EQUITABLE  ESTATES  ARISING  FROM  CONVERSION. 

SECTION  I. 

THE  CONVERSION  OF  REAL  ESTATE  INTO  PERSONAL,  AND  OF 
PERSONAL  ESTATE  INTO  REAL. 
§  1159.     Definition  and  general  nature. 

§  1160.     I.     What  words  are  suflScient  to  work  a  conversion. 
§  1161.     The  same;  under  a  contract  of  sale, 
§  1162.     II.     Time  from  which  the  conversion  takes  effect. 
§  1163.     The  same;  in  contracts  of  sale  with  option. 
§  1164.     III.     Effects  of  a   conversion;   land   directed   or  agreed  to  be 

sold. 
§  1165.     The  same;  money  directed  or  agreed  to  be  laid  out  in  land. 
§  1166.     Limitations  on  these  effects. 
§1167.     Conversion   by  paramount  authority;    compulsory   sale  of  land 

under  statute;  sale  by  order  of  court. 
§  1168.     Conversion  as  between  life  tenant  and  remainder-man. 

SECTION  II. 

RESULTING  TRUST  UPON  A  FAILURE  OF  THE  PURPOSES  OF 
THE  CONVERSION. 
§  116&.     The  questions  stated;  object  and  extent  of  the  doctrine. 
§  1170.     A  total  failure  of  the  purpose. 

§  1171,     Partial  failure;  wills  directing  conversion  of  land  into  money. 
§  1172.     The  same;  wills  directing  the  conversion  of  money  into  land. 
§  1173.     The  same;  deeds  directing  the  conversion  of  land  into  money. 
§  1174.     The  same;  deeds  directing  the  conversion  of  money  into  land. 

SECTION  III. 

RECONVERSION. 
§1175.     Definition:  Rationale  of  the  doctrine. 
§  1176.     Who  may  elect  to  have  a  reconversion. 
§  1177.     Mode  of  election. 
§  1178.     Double  conversion. 


TABLE  OF  CONTENTS. 

CHAPTER  FIFTH. 

MORTGAGES  OF  LAND. 

SECTION  I. 
THE  ORIGINAL  OR  ENGLISH  DOCTRINE. 

§  1179.  The  common-law  doctrine:  Statute  of  7  Geo.  II.,  c.  20. 

§  1180.  Origin    and    development    of    the    equity    jurisdiction;    the 

"equity   of  redemption." 

§  1181.  The  equitable  theory. 

§  1182.  The  double  system  at  law  and  in  equity. 

§  1183.  The  legal  and  the  equitable  remedies. 

§  1184,  Peculiarities  of  the  English  system. 

S  1185.  Subsequent  mortgages  equitable,  not  legaL 

SECTION  II. 
THE  AMERICAN  DOCTRINE. 

§1186.     In  general:  Two  methods  prevailing. 

§1187.     First    method:    Both    the    legal    and    the    equitable   theories; 

states  arranged  alphabetically  in  foot-note. 
8  1188.    Second  method:    The  equitable  theory  alone;   states  arranged 

in  foot-note. 
§  1189.     The  same :  The  mortgagee  in  possession. 
§  1190.     The  same:  Equitable  remedies  of  the  parties. 
S  1191.     Definition  of  mortgage. 

SECTION  HL 

VARIOUS  FORMS  AND  KINDS  OF  MORTGAGE. 

S  1192.  In  equity  a  mortgage  is  a  security  for  a  debt. 

§  1193.  Once  a  mortgage  always  a  mortgage. 

§  1194.  Mortgage   and   conveyance  with  an  agreement  of  repurchase, 
distinguished. 

§  1195.  The  general  criterion:  the  continued  existence  of  a  debt. 

§  1196.  A  conveyance  absolute  on  its  face  may  be  a  mortgage. 

1197-1199.  Mortgage  to  secure  future  advances. 

§  1197.  As  between  the  immediate  parties. 

§  1198.  As  against  subsequent  incumbrancers  and  purchasers. 

§  1199.  As  affected  by  the  recording  act. 

1200-1203.  Mortgages  to  secure  several  different  notes. 

§  1200.  As  between  the  original  parties. 

§  1201.  Assignees  of  the  notes;  order  of  priority  among  them, 

§  1202.  Effect  of  an  assignment  of  the  notes. 

§  1203.  Priority  between  an  assignee  and  the  mortgagee. 


TABLE  OF  CONTENTS.  li 

SECTION  IV. 

INTERESTS,  RIGHTS,  AND  LIABILITIES  OF  THE  MORTGAGOR 
AND  OF  THE  MORTGAGEE. 

§  1204.     General  interests  of  the  mortgagor  and  the  mortgagee. 
§§  1205-1208.     I.     Conveyance  by  the  mortgagor. 

§  1205.     Conveyance  "subject  to"  the  mortgage;  effect  of, 

§  1206.     Grantee  "assumes"  the  mortgage;  effect  of. 

§  1207.     Eationale  of  the  grantee's  liability. 

§  1208.     Assumption  by  a  mortgagee. 
§§  1209-1214.     II.     Assignment  of  the  mortgage.     . 

§  1209.     Assignment  at  law  and  in  equity. 

§  1210.  Assignment  of  the  debt  is,  in  equity,  an  assignment  of  the 
mortgage;  what  operates  as  such  assignment. 

§  1211.     Equitable    assignment   by   subrogation. 

§  1212.     In  whose  favor  such  equitable  assignment  exists. 

§  1213.     In  whose  favor  such  equitable  assignment  does  not  exist. 

§  1214.     Eight  to  compel  an  actual  assignment. 
§§  1215-1218.     III.     Eights  and  liabilities  of  mortgagee  in  possession. 

§  1215.     To  whom  the  doctrine  applies  in  different  states. 

§  1216.     With  what  he  is  chargeable;  rents  and  profits,  willful  default. 

§  1217.  His  allowances  and  credits,  disbursements,  repairs,  improve- 
ments, compensation. 

§  1218.     Liability  to  account. 
§§  121^-1226.     rv.     Eedemption  from  the  mortgage. 

§  1219.     By  the  mortgagor;  suit  to  redeem. 

§  1220.     By  other  persons. 
§§  1221-1226.     Eights  of  contribution  and  of  exoneration  upon  redemption. 

§  1221.     General  doctrine;  classes  of  eases;  equities  equal  or  unequal. 

§  1222.     (1)   Where  their  equities  are  equal;  titles  simultaneous. 

§  1223.  (2)  Where  their  equities  are  unequal,  although  the  titles  are 
simultaneous;  tenants  for  life  or  for  years  and  remainder- 
men; dowress  and  reversioner. 

§  1224.  (3)  Inequality  of  equities  where  titles  are  not  simultaneous; 
between  mortgagor  and  his  grantee  of  a  parcel;  between 
successive  grantees;  inverse  order  of  alienation. 

§  1225.  The  same ;  what  circumstances  disturb  these  equities,  and  de- 
feat this  rule. 

§  1226.     (4)  A  release  by  the  mortgagee  of  one  or  more  parcels. 

§  1227.     V.     Foreclomre;    foreclosure  proper  or   "strict   foreclosure.** 

§  1228.     Foreclosure  by  judicial  sale. 


lii  TABLE  OF  CONTENTS. 


CHAPTER  SIXTH. 

MORTGAGES  OF  PERSONAL  PROPERTY  AND  PLEDGES.      ' 
§  1229.     General  nature  of,  at  law. 
§  1230.     Jurisdiction  and  remedies  in  equity. 
§  1231.     Pledges:   Equitable  jurisdiction  and  remedies. 
§  1232.     Chattel  mortgages  in  California. 

CHAPTER  SEVENTH. 

EQUITABLE  LIENS. 
SECTION  I. 

THEIR  GENERAL  NATURE. 
§  1233.     What  are  included  in  this  term;  what  is  an  equitable  lien. 
§  1234.     Origin  and  rationale  of  the  doctrine. 

SECTION  II.- 
ARISING  FROM  EXPRESS  CONTRACT. 
§  1235.     The  general  doctrine;  requisites  of  the  contract. 
§  1236.     On  property  to  be  acquired  in  future. 

§  1237.  The  form  and  nature  of  the  agreement;  illustrations  of  par- 
ticular agreements;  agreements  to  give  a  mortgage;  defec- 
tive mortgages;  assignments;  bills  of  exchange,  etc. 

SECTION  HI. 

ARISING  FROM  IMPLIED  CONTRACTS. 

I  1238.  Nature  of  "implied  contract"  in  equity. 

§  1239.  General   doctrine   as   to   liens   arising   ex  CBquo  et  hono. 

§  1240.  Expenditure  by  one  joint  owner. 

§  1241.  Expenditure  for  the'  benefit  of  the  true  owner. 

§  1242.  Expenditure  by  a  life-tenant. 

§  1243.  In  other  special  cases. 

SECTION  IV. 
ARISING  FROM  CHARGES  BY  WILL  OR  BY  DEED. 
§  1244.     General  doctrine;  nature  of  a  charge. 
§  1245.     What  amounts  to  a  charge  creating  such  a  lien. 
§  1246.     The  same;  express  charge. 
§  1247,     The  same;  implied  charge;  English  and  American  rules  stated 

in  foot-note. 
§  1248.     Observations  upon  the  rules  adopted  by  American  courts. 


TABLE  OF  CONTENTS.  liii 

SECTION  V. 
THE  GRANTOR'S  LIEN,  ON  CONVEYANCE. 

§§  1249-1254.  The  ordinary  grantor's  lien  for  unpaid  purchase  price. 

§1249.  General  doctrine;  in  what  states  adopted  or  rejected;  states 
classified  in  foot-notes. 

§  3250.  Origin  and  rationale;  Ahrend  v.  Odiorne  discussed. 

§1251.  Requisites,  extent,  and  effects  of  this  lien;  great  uncertainty 
and  conflict  in  the  results  of  judicial  opinion. 

§  1252.  How  discharged  or  waived;  effect  of  taking  other  security,  etc. 

§  1253.  Against  whom  the  lien  avails. 

§  1254.  In  favor  of  whom  the  lien  avails;  whether  or  not  assignaBle. 

§§  1255-1259.  Grantor's  lien  by  reservation. 

§  1255.  General  description. 

§  1256.  "What  createsi  a  lien   by  reservation. 

§  1257.  Essential  nature  of  the  lien. 

§  1258.  Its  operation  and  effect. 

§  1259.  The  grantor's  dealing  with  this  lien;  waiver;  assignment. 

SECTION  VI. 

THE  VENDOR'S  LIEN  AND  THE  VENDEE'S  LIEN,  ON  CONTRACT 
FOR  SALE  AND  PURCHASE. 

§§  1260-1262.     Vendor's  lien  under  contract  of  sale. 

§  1260.  General  doctrine;  vendor's  lien  and  grantor's  lien  distin- 
guished. 

§  1261.  Essential  nature  and  effects;  vendor's  interest  determined  by 
doctrine  of  equitable  conversion. 

§  1262.     How  enforced. 

§  1263.     Vendee's  lien  for  purchase  money  paid. 

SECTION  VII. 

ARISING  FROM  A  DEPOSIT  OF  TITLE  DEEDS. 

§  1264.  The  English  doctrine. 

§  1265.  The  doctrine  in  the  United  States. 

§  1266.  Distinction  suggested,  as  a  conclusion  from  American  cases. 

§  1267.  How  this  lien  is  enforced. 

SECTION  VIII. 

VARIOUS  STATUTORY  LIENS. 

§  126S.     General  nature  and  tendency  of  American  legislation  on  this 

subject ;   various  examples. 
§  1269.     How  such  liens  are  enforced. 


liv  TABLE  0¥  CONTENTS. 

CHAPTER  EIGHTH. 

ESTATES  AND  INTERESTS  ARISING  FROM  ASSIGNMENTS. 

SECTION  I. 

ASSIGmiENT  OF  THINGS  IN  ACTION. 

§  1270.  Original  doctrines  at  law  and  in  equity. 

§  1271.  Rationale  of  the  equitable  doctrine. 

§  1272.  Assignment  of  things  in  action  at  common  law. 

§  1273.  The  same;  under  statutory  legislation. 

§  1274.  Interpretation  of  this  legislation  as  contained  in  the  Eeformed 

Procedure. 

§  1275.  What  things  in  action  are  or  are  not  thus  legally  assignable. 

§  1276.  Assignments  forbidden  by  public  policy. 

§  1277.  The  equitable  jurisdiction;  under  the  Reformed  Procedure. 

§1278.  The  equitable  jurisdiction;   under  the  common-law  procedure. 

§  1279.  Incidents  of  an  assignment. 

SECTION  n. 

EQUITABLE  ASSIGNMENT  OF  A  FUND  BY  ORDER  OR  OTHER- 
WISE. 

§1280,     The    general    doctrine;    its    requisites,    scope,    operation,    and 

effects. 
§  1281.     Notice  to  the  creditor-assignee,  essential. 
§  1282.     A  mere  mandate  to  a  depositary  or  agent,  is  not  an  equitable 

assignment,  but  is  revocable;  an  appropriation  is  necessary. 
§  1283.     Funds  not  yet  in  existence. 
§  1284.     Operation  of  bills  of  exchange  and  checks. 

SECTION  IIL 

ASSIGNMENT  OF  POSSIBILITIES,  EXPECTANCIES,  AND  PROP- 
ERTY TO  BE  ACQUIRED  IN  FUTURE. 

§  1285.     Equitable  jurisdiction  under  modern  legislation. 

§  1286.     Essential  elements  and  grades  of  contingencies,  expectancies, 

and  possibilities. 
§  1287.     Assignment  of  possibilities. 
§  1288.     Assignment  of  personal  property  to  be  acquired  in  the  future; 

rationale  of  the  doctrine:  Holroyd  v.  Marshall. 
§  1289.     Assignment  of  future  cargo  or  freight. 
§  1290.     Eequisites  of  an  assignment  of  property  to  be  acquired  m  the 

future. 
§  1291.     Extent  of  the  doctrine,  to  what  property  and  persons  it  appGea. 


TABLE  OF  CONTENTS.  Iv 

CHAPTER  NINTH. 

CONTRACTS  IN  EQUITY. 

SECTION  I. 

GENERAL  DOCTRINE  CONCERNING  CONTRACTS. 

§  1292.  Object  of  this  chapter, 

§  1293.  What  constitutes  a  contract. 

§  1294.  Equitable  contract  by  representations  and  acta. 

§  1295.  ETflEects  of  a  contract  in  equity;  covenajit  creating  an  equitable 

servitude. 

§1296.  Effects  of  contracts  in  general. 

S  1297.  Enforcement  of  contracts  in  equity. 

SECTION  H. 

EQUITABLE  DEBTS. 

§  1298.     General  nature. 

§  1299.     Husband's  liability  for  wife's  necessaries. 
§  1300.     Liability  for  money  advanced  to  pay  debts  of  a  person  in- 
capable of  contracting. 
§  1301.     On  death  of  one  joint  debtor. 
S  1302.     On  death  of  a  joint  surety. 

CHAPTER  TENTH. 

PERSONS  NOT  SUI  JURIS. 

SECTION  I. 

INFANTS. 

S  1303.  Questions  stated. 

§  1304.  Origin  of  the  equitable  jurisdiction  over  infanta. 

§  1305.  How    jurisdiction    is    acquired;     infant    made  a   "ward   of 
court." 

§§  1306-1307.  Extent  of  the  jurisdiction. 

§  1306.  Appointment  of  guardians. 

§  1307.  Custody  of  infants;  custody  of  parents  when  controlled. 

§§  1308-1310.  How  the  jurisdiction  is  exercised. 

§  1308.  Supervision  of  the  guardian. 

§  1309.  Management  of  property. 

§  1310.  Marriage  of  infant  ward. 


Ivi  TABLE  OF  CONTENTS. 

SECTION  II. 

PERSONS  OF  UNSOUND  MIND, 
§  1311,     Orifrin   of  this  jurisdiction. 
§  1312.     Mode  of  exercising  the  jurisdiction  in  England. 
§  1313.     Jurisdiction  in  the  United  States. 
8  1314.     Jurisdiction  in  cases  of  weak  or  unsound  mind. 


TABLE  OF  CO^■TENTS.  IvU 

CONTENTS  OF  VOLUME  IV. 


PART  FOURTH. 

THE   REMEDIES   AND   REMEDIAL   RIGHTS   WHICH   ARE 

CONFERRED  BY  THE  EQUITY  JURISPRUDENCE. 

PRELIMINARY  SECTION. 

§  1315.  General  object. 

§  1316.  Classification. 

§  1317.  Remedies  acting  in  rem  or  in  personam. 

§  1318.  Eemedies  in  personam  beyond  tlie  territorial  jurisdiction. 

FIRST  GROUP. 

REMEDIES  PURELY  ANCILLARY  AND  PROVISIONAL. 
CHAPTER  FIRST. 

INTERPLEADER. 

§  1319.  Description  of  this  group. 

§  1320.  General  nature  and  objects  of  interpleader. 

§  1321.  The  claims  legal  or  equitable. 

§  1322.  Essential  elements. 

§  1323.  First.     The  same  thing,  debt,  or  duty. 

§  1324.  Second.     Privity  between  the  opposing  claimants. 

§  1325.  TMrd.     Plaintiff  a  mere  stakeholder. 

§  1326.  Fourth.     No  independent  liability  to  one  claimajit. 

§  1327.  By  bailees,  agents,  tenants,  and  parties  to  contracts. 

§  1328.  Pleadings  and  other  procedure. 

§  1329.  Interpleader  in  legal  actions  by  statute. 

CHAPTER  SECOND. 

RECEIVERS. 

§  1330.  Definition,   general  nature,   and   objects. 

§  1331.  The  appointment  discretionary. 

§§  1332-1335.  Oases  in  which  a  receiver  may  be  appointed. 

§  1332.  First  class. 

§  1333.  Second  class. 

§  1334.  Third  class. 

§  1335.  Fourth  class. 

§  1336.  Their  powers,  rights,  duties,  and  liabilities. 


Iviii  TABLE  OF  CONTENTS. 

SECOND  GROUP. 
REMEDIES  PURELY  PREVENTIVE. 

CHAPTER  FIRST. 

INJUNCTIONS. 

SECTION  I. 

TO  PROTECT  OR  RESTRAIN  THE  VIOLATION  OF  OBLIGATIONS 
AND  RIGHTS  OF  PROPERTY  OR  OF  CONTRACT,  EITHER 
LEGAL  OR  EQUITABLE. 
§  1337.     General  nature  and  objects:  Interdicts. 
§  1338.     Fundamental  principle. 
§  1339.     To  protect  purely  equitable  estates  or  interests,  and  in  aid  of 

purely  equitable  remedies. 
§  1340.     The  same :  Particular  instances. 
§§  1341-1344.     To  prevent  the  violation  of  contracts. 
§  1341.     General  doctrine. 

§  1342.     (1)   Restrictive  covenants  creating  equitable  easements. 
§  1343.     (2)   Contracts  for  personal  services  or  acts. 
§  1344.     (3)   Other  agreements,  generally  negative  in  their  nature. 
§  1345.     Miscellaneous  cases:  Corporations  and  their  officers;  between 
mortgagor  and   mortgagee;    public    officers;   cloud  on  title; 
married  women's  property;  partners,  etc. 

SECTION  n. 

TO  PREVENT  OR  RESTRAIN  THE  COMMISSION  OF  TORTS. 

§  134&.  The  estates  and  interests  generally  legal. 

§  1347.  Kinds  and  classes  of  torts  restrained. 

§  1348.  Waste. 

§  1349.  Nuisance:   Public. 

§  1350.  Nuisance:  Private;  when  restrained. 

§1351.  Same:  Instances;  violations  of  easements. 

§  1352.  Patent  rights  and  copyrights. 

§  1353.  Literary  property  as  distinct  from  copyright. 

§  1354.  Trade-marks. 

§  1355.  Good-will. 

§  1356.  Trespasses. 

§  1357.  General  doctrine;  cases  in  wMcli  trespass  may  te  engoined. 

§  1358.  Slander  of  title;  libels;  wrongful  use  of  name. 

SECTION  ni. 

MANDATORY  INJUNCTIONS. 
1 1359.     Nature  and  object;  when  granted. 


TABLE  OF  CONTENTS.  lix 

SECTION  IV. 
TO  RESTRAIN  ACTIONS  OR  JUDGMENTS  AT  LAW. 

§  1360.     Origin  of  the  jurisdiction, 

§1361.     When  the  jurisdiction  is  not  exercised;  General  doctrine. 

§  1362.  When  the  jurisdiction  may  be  exercised:  First  class;  exclu- 
sive equitable  interests  or  rights  involved. 

§  1363.     The  same :   Second  class ;  legal  remedies  inadequate. 

§  1364.  The  same:  Third  class;  fraud,  mistake,  or  accident  in  the  trial 
at  law. 

§  1365.    Jurisdiction  to  grant  nev?  trials  at  law  in  the  United  States. 

CHAPTER  SECOND. 

EQUITABLE  DEFENSES  INTERPOSED  IN  LEGAL  ACTIONS,  AS 
A  SUBSTITUTE  FOR  INJUNCTIONS. 

§  1366.  General  object. 

§  1367.  Equitable  pleas  under  the  common-law  procedure. 

§  1368.  Equitable  defenses  under  the  reformed  procedure. 

§  1369.  Meaning  and  nature  of  an  equitable  defense. 

§  1370.  General  effect:  Injunction  against  actions  at  law  unnecessary. 

§  1371.  Cases   in   which   an   injunction   may   still  be  necessary:    First 

class;   to  avoid  multiplicity  of  suits. 

§  1372.  The  same:   Second  class;  new  parties  needed. 

§1373.  The  same:    Third  class;   no  affirmative  relief. 

§  1374.  Some  illustrations  of  equitable  defenses. 


THIRD  GROUP. 

REMEDIES  WHICH  INDIRECTLY  ESTABLISH  OR  PROTECT 
INTERESTS  AND  PRIMARY  RIGHTS,  EITHER  LEGAL 
OR  EQUITABLE. 

CHAPTER  FIRST. 

REFORMATION  AND  CANCELLATION. 

§  1375.     General  nature  and  object. 

5  1376.     Reformation  and  re-cxecution  of  instruments. 

S  1377.     Cancellation,  surrender  up,  or  discharge  of  instrument!. 


IX  TABLE  OF  CONTENTS. 


FOURTH  GROUP. 

REMEDIES  BY  WHICH  ESTATES,  INTERESTS,  AND  PRI- 
MARY RIGHTS,  EITHER  LEGAL  OR  EQUITABLE,  ARE 
DIRECTLY  DECLARED,  ESTABLISHED,  OR  RECOV- 
ERED, OR  THE  ENJOYMENT  THEREOF  FULLY  RE- 
STORED. 

CHAPTER  FIRST. 

SUITS  BY  WHICH  PURELY  LEGAL  ESTATES  ARE  ESTAB- 
LISHED, AND  THE  ENJOYMENT  THEREOF  RECOVERED: 
NAMELY,  ASSIGNMENT  OF  DOWER:  ESTABLISHMENT  OF 
DISPUTED  BOUNDARIES;  PARTITION  OF  LAND,  AND  OF 
PERSONAL  PROPERTY. 

§  1378.  General  nature  and  object  of  this  group. 

§  1379.  Nature  and  object  of  the  first  class. 

§§  1380-1383.  Assignment  of  dower. 

§  1380.  Legal  remedies. 

§  1381.  Origin  and  grounds  of  the  equitable  jurisdiction. 

§  1382.  The  jurisdiction  now  concurrent. 

§  1383.  Exclusive  jurisdiction  over  dower  in  equitable  estates. 

§  1384.  Establishment   of   disputed   boundaries. 

§  1385.  The  same;   equitable  incidents  and  grounds, 

§§  1386-1390.  Partition  of  lands. 

§  1386.  Common-law  remedy. 

§  1387.  Equitable   jurisdiction   and  remedies. 

§  1388.  The  title  of  the  plaintiff. 

§  1389.  Mode  of  partition. 

§  1390.  Partition  by  means  of  a  sale. 

§  1391.  Partition  of  personal  property. 

§  1392.  The  same:  issue  of  title. 


CHAPTER  SECOND. 

SUITS  BY  WHICH  SOME  GENERAL  RIGHT,  EITHER  LEGAL  OR 
EQUITABLE,  IS  ESTABLISHED.  BILLS  OF  PEACE,  AND 
BILLS  QUIA  TIMET;  QUIETING  TITLE. 

§  1393.     Nature   and   object. 

§  1394.     Bill?  of  peace;  bills  quia  timet;  quieting  title. 


TABLE  OF  CONTENTS.  1x1 


CHAPTER  THIRD. 

SUITS  BY  WHICH  SOME  PARTICULAR  ESTATE,  INTEREST,  OR 
RIGHT,  EITHER  LEGAL  OR  EQUITABLE,  IS  ESTABLISHED. 
STATUTORY  SUIT  TO  QUIET  TITLE;  SUIT  TO  REMOVE  A 
CLOUD  FROM  TITLE. 

§  1395.  Nature  and   object. 

§  1396.  Statutory  suit  to  quiet  title;  legislation. 

§  1397.  The  same;  essential  features  and  requisites;  possession;  title. 

§  1398.  Suit  to   remove  a  cloud   from   title;   to  prevent   a  cloud. 

§  1399.  The  same;  when  the  jurisdiction  is  exercised;  general  doctrine. 


FIFTH  GROUP. 

REMEDIES   BY   WHICH   EQUITABLE   OBLIGATIONS   ARE 
SPECIFICALLY  AND  DIRECTLY  ENFORCED. 

CHAPTER  FIRST. 

SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

§  1400.  Nature  and   object. 

§  1401.  Specific  peTformanee  of  contracts;  grounds  of  the  jurisdiction. 

§  1402.  Extent  of   the   jurisdiction;    inadequacy   of   damages;    various 

kinds  of  contracts. 

§1403.  The  same:   Impracticability  of  the  legal  remedy. 

§  1404.  The  jurisdiction  discretionary. 

§  1405.  Essential   elements   and  incidents. 

§  1406.  Rights  under  the  contracts;  effect  of  events  without  the  agency 

of  the  parties. 

§  1407,  Performance  by  plaintiff  a  condition  precedent. 

§  1408.  Time  as  affecting  the  right  to  a  performance. 

§  1409.  Enforcement  of  verbal  contracts  part  performed. 

§  1410.  Damages  in  place  of  a  specific  performance. 

CHAPTER  SECOND. 

SPECIFIC  ENFORCEMENT   OF  OBLIGATIONS   ARISING  FROM 
TRUSTS  AND  FIDUCIARY  RELATIONS. 

§  1411.     General  nature,  kinds,  and  classes. 

§  1412.     Suits   against  corporations  to  compel  the  transfer  or  issue  of 
stock. 


Ixii  TABLE  OF  CONTENTS, 


SIXTH  GROUP. 

REMEDIES  IN  WHICH  THE  FINAL  RELIEF  IS  PECUNIARY, 
BUT  IS  OBTAINED  BY  THE  ENFORCEMENT  OF  A  LIEN 
OR  CHARGE  UPON  SOME  SPECIFIC  PROPERTY  OR 
FUND. 

CHAPTER  FIRST. 

FORECLOSURE    SUITS;    MARSHALING    SECURITIES;    CRED- 
ITORS' SUITS. 

§  1413.     Nature,  kinds,  and  classes. 

§  1414.     Suits  for  marshaling  of  securities. 

§  1415.     Creditors'  suits. 


.SEVENTH  GROUP. 

REMEDIES  IN  WHICH  THE  FINAL  RELIEF  IS  WHOLLY 
PECUNIARY,  AND  IS  OBTAINED  IN  THE  FORM  OF  A 
GENERAL  PECUNIARY  RECOVERY. 

CHAPTER  EIRST. 

SUITS  FOR  CONTRIBUTION,  EXONERATION,  AND  SUBROGA- 
TION. 

§  1416.  General  nature,  kinds,  and  classes. 

§  1417.  Exoneration;  rights  of  suretj  against  the  principaL 

§  1418.  Contribution. 

§  1419.  Subrogation. 

CHAPTER  SECOND. 

SUITS  FOR  AN  ACCOUNTING. 

§  1420.     Origin  of  the  equitable  jurisdiction. 

S  1421.     Extent  of  the  equitable  jurisdiction;  when  exercised. 


EQUITABLE  REMEDIES. 


OUTLINE  TABLE  OF  CONTENTS. 


Introduction. 

Interpleader. 

Appointment  of  Keceivers. 

The  Eeeeiver's  Possession;  and  Conflicting  Appointmeutt. 

Action  Against  the  Receiver. 

Suits  by  the  Receiver. 

Receiver's  Relation  to  Pending  Suits;  and  When  He  ia 
a  Necessary  Party. 

Receivers;  Management  and  Disposition  of  Property. 

Receivers;  Claims  and  Allowances. 

Removal  and  Discharge  of  Receiver. 

Foreign  Receivers;  Ancillary  Receivers. 

Injunctions;  General  Principles;  Injunction  to  Protect 
Equitable  Estates  and  Interests. 

Injunctions  to  Prevent  the  Violation  of  Contracts. 

Injunctions  Against  Corporations  and  Their  Officers. 

Injunctions  Relating  to  Voluntary  Associations  and  Non- 
stock Corporations. 

Injunctions  Between  Mortgagor  and  Mortgagee. 

Injunctions  Against  Public  Officers. 

Injunctions  Against  Municipal  Corporations  and  Their 
Officers. 

Injunction  Against  Taxation;  and  Against  Special  or  Local 
Assessments. 


Chapter 

I. 

Chapter 

IL 

Chapter 

IIL 

Chapter 

IV. 

Chapter 

V. 

Chapter 

VL 

Chapter 

VIL 

Chapter 

VHL 

Chapter 

IX. 

Chapter 

X. 

Chapter 

XL 

Chapter 

XIL 

Chapter 

XIII. 

Chapter 

XIV. 

Chapter 

XV. 

Chapter 

XVI. 

Chapter 

xvn. 

Chapter 

xvin. 

Chapter 

XIX. 

Chapter 

XX. 

Chapter 

XXI. 

Chapter 

XXII. 

Chapter 

XXIII. 

Cliapter 

XX  rv. 

Chapter 

XXV. 

Chapter 

XXVI. 

CONTENTS  OF  VOLUME  Y. 

Injunction  Against   Exercise  of  the   Power  of  Eminent 

Domain. 
Injunctions  to  Prevent  or  Restrain  the  Commission  of 

Torts  in  General;  to  Restrain  Criminal  Acts. 
Injunction  Against  Waste. 
Injunction  Against  Trespass. 
Injunction  Against  Nuisance. 
Injunctions  to  Protect  Easements. 
Injunctions  for  the  Protection  of  Water  Rights. 
(Ixiii) 


Ixiv 


TABLE  OF  CONTENTS. 


Cliapter        XXVII. 


Chapter  XXVIII. 

Chapter  XXIX. 

Chapter  XXX. 

Chapter  XXXI. 

Chapter  XXXII. 

Chapter  XXXIII. 

Chapter  XXXIV. 

Chapter  XXXV. 

Chapter  XXXVI. 

Chapter  XXXVII. 

Chapter  XXXVIU. 

Chapter  XXXIX. 

Chapter  XL. 

Chapter  XLI. 


Chapter 


xm. 


Chapter 

XLHL 

Chapter 

XLIV. 

Chapter 

XLV. 

Chapter 

XLVI. 

Chapter 

XLVII. 

Chapter 

XLVIIL 

Chapter 

XLIX. 

Injunctions  to  Protect  Patents;   Copyrights  and  Literary 

Property;    Trade-marks  and   Trade   Names;    Exclusive 

Franchises. 
Injunction  Against  Interference  With  Freedom  of  Trade 

or  Employment;  Combinations,  Strikes,  Boycotts,  etc. 
Injunctions;  Miscellaneous  Torts. 
Mandatory   Injunctions. 

Equitable  Relief  Against  Actions,  Judgments,  and  Exe- 
cutions at  Law. 
Reformation  and  Cancellation. 
Assignment  of  Dower;   and    Establishment  of  Disputed 

Boundaries. 
Partition. 
Bills  of  Peace. 
Suit   to   Prevent   or  Remove   Cloud   on   Title — Statutory 

Suit  to  Quiet  Title. 
Specific   Performance  of   Contracts — Ground  and  Extent 

of  the  Jurisdiction. 
Elements    and    Incidents    of    the    Contract    Essential    to 

Specific  Performance. 
Specific  Performance;  Default  and  Delay  by  Plaintiff. 
Specific  Performance  of  Parol  Contracts,  Part  Performed. 
Partial    Performance    With    Compensation — Damages    in 

Place  of  a  Specific  Performance. 
Equitable   Estates   and  Interests  Under  the   Contract  of 

Sale  and  Purchase  of  Land. 
Suits  to  Compel  Transfer  ui  Issue  of  Stock. 
Marshaling  of  Securities. 
Creditors'  Suits. 

Creditors'  Bills  Against  Stockholders. 
Suits  for  Reimbursement,  Contribution^  Exoneration,  and 

Subrogation. 
Suits  for  an  Accounting. 
Partnership  Bills. 


TREATISE 


ON 


EQUITY  JURISPRUDENCE. 

(Ixv) 


TREATISE 


EQUITY  JURISPEUDENCE. 


IISTRODUCTORY  CHAPTER. 


SECTION  I. 

THE    ORIGIN    OF    EQUITY    JURISDICTION    AND    JURISPRU- 
DENCE. 

ANALYSIS, 

§  1.  Object  of  this  Introduction. 

§§  2-9.  Mquitas  in  the  Roman  Law. 

§§  10-42.  Origin  of  Equity  in  the  English  Law. 

§§  10-13.  Primitive  condition  of  the  law  and  the  courts. 

§§  14,  15.  Early  influences  of  the  Roman  Law. 

§§  16-29.  Causes  which  made  a  court  of  equity  necessary. 

§§  21-23.  The  earliest  common-law  actions  and  procedure. 

§  24.  Statute  of  Edward  I.  concerning  new  writs. 

§§  25-29.  Limited  results  of  this  legislation. 

§§  30-42.  Commencement  and  progress  of  the  chancery  jurisdiction. 

§  31.  Original  powers  of  the  King's  Council. 

§32.  Original  common-law  jurisdiction  of  the  Chancellor. 

§§  33-35.  Jurisdiction    of    grace    transferred   to    the    Chancellor;    Statute    24 

Edward   III. 

§§  36-39.  Development  of  the  equitable  jurisdiction. 

§  40.  Abolition  of  the  court  in  England  and  in  many  American  states. 

§§  41,  42.  Equity  jurisdiction  in  other  American  states. 

§  1.  Object  of  This  Introduction. — It  is  not  my  purpose 
to  attempt  a  complete  and  detailed  history  of  equity  as  it 
exists  in  England  and  in  the  United  States.  That  work 
has  already  been  done  by  Mr.  Spence,  in  his  Equitable 
Jurisdiction  of  the  Court  of  Chancery.  Some  general  ac- 
i-i  (1) 


§  2  EQUITY    JURISPEUDENCE.  2 

count,  however,  of  the  origin  of  the  equitable  jurisdiction, 
of  the  sources  from  which  the  principles  and  doctrines  of 
the  equity  jurisprudence  took  their  rise,  and  of  the  causes 
which  led  to  the  establishment  of  the  Court  of  Chancery, 
with  its  modes  of  procedure  separate  and  distinct  from  the 
common-law  tribunals,  with  their  prescribed  and  rigid, 
forms  of  action,  is  absolutely  essential  to  an  accurate  con- 
ception of  the  true  nature  and  functions  of  equity  as  it 
exists  at  the  present  day.  I  shall  therefore  preface  this 
introductory  chapter  with  a  short  historical  sketch,  exhibit- 
ing the  system  in  its  beginnings,  and  describing  the  early 
movements  of  that  progress  through  which  its  principles 
have  been  developed  into  a  vast  body  of  doctrines  and  rules 
which  constitute  a  most  important  department  of  the 
municipal  law. 

§  2.  ^quitas  in  the  Roman  Law. — The  growth  and  func- 
tions of  equity  as  a  part  of  the  English  law  were  anticipated 
by  a  similar  development  of  the  same  notions  in  the  Roman 
jurisprudence.  In  fact,  the  equity  administered  by  the 
early  English  chancellors,  and  the  jurisdiction  of  their 
court,  were  confessedly  borrowed  from  the  cequitas  and 
judicial  powers  of  the  Eoman  magistrates;  and  the  one 
cannot  be  fully  understood  without  some  knowledge  of  the 
other.  This  intimate  connection  between  the  two  systems 
is  a  sufficient  reason  or  excuse  for  the  following  brief  state- 
ment of  the  mode  in  which  cequitas  was  introduced  into  the 
Eoman  law,  and  of  the  important  part  which  it  performed, 
under  the  great  jurists  and  magistrates  of  the  empire,  in 
shaping  the  doctrines  of  that  wonderful  jurisprudence. 
The  researches  of  modern  juridical  scholars  have  exposed 
the  falsity  of  much  that  has  been  written  by  English 
authors,  such  as  Blackstone  and  Coke,  with  respect  to  the 
origin  of  their  law,  and  have  demonstrated  the  existence  of 
the  closest  relations  between  the  Roman  jurisprudence  and 
the  early  English  common  law.  These  relations  with  the 
growing  common  law  were  disturbed,  and  finally  broken, 


3  OEIGIN    OF    EQUITY    JURISPRUDENCE.  §  3 

from  political  motives  and  considerations;  but  with  the 
equity  jurisprudence  they  became,  for  that  very  reason, 
even  more  intimate,  and  have  so  continued  until  the  present 
day.i 

§  3.  In  the  earliest  period  of  the  Roman  law  of  which 
there  is  any  certain  trace  remaining,  and  thenceforward 
for  a  considerable  time  after  the  epoch  of  the  legislation 
known  as  the  Twelve  Tables,  there  were  five  actions  {legis 
actiones)  for  the  enforcement  of  all  civil  rights.  Nothing 
could  exceed  the  arbitrariness  and  formalism  of  these 
judicial  proceedings.  Absolute  accuracy  was  required  in 
complying  with  the  established  phrases  and  acts;  any 
omission  or  mistake  of  a  word  or  a  movement  was  fatal. 
Gains,  who  wrote  long  after  they  were  abolished,  says  of 
them:  ''But  all  these  actions  of  the  law  fell  gradually 
into  great  discredit,  because  the  over-subtlety  of  the  an- 
cient jurists  made  the  slightest  error  fatal."!  These  ac- 
tions finally  became  obsolete  and  disappeared,  except  one 
of  them,  which  under  a  modified  form  was  retained  for 
certain  very  special  cases  until  a  late  period  of  the  empire. 
The  analogy  between  them  and  the  old  "real  actions"  of 
the  English  common  law  is  striking  and  complete.  Their 
place,  in  all  ordinary  controversies,  was  supplied  by  a 
species  of  judicial  proceedings  much  more  simple  and 
natural,  to  which  the  generic  name  "formula"  was  given.2 

§  2,  1  See  Bracton  and  his  relations  with  the  Roman  law,  by  C.  Giiter- 
bock;  translated  by  Brinton  Coxa. 

§  3,  1  Institutes,  b.  iv.,  §  30. 

§  3,  2  As  to  "formulas,"  see  Gaius's  Institutes,  b.  iv.,  §§  30-52;  Poste's 
ed.  of  Gaius,  pp.  423-441;  Sandars's  Institutes  of  Justinian,  pp.  63-67. 
It  should  be  remembered  that  the  formula  was  drawn  up  by  or  under  the 
direction  of  the  magistrate.  I  add,  as  an  illustration,  one  of  the  most 
simple  kinds  of  formulas,  as  given  by  Gaius,  with  a  brief  explanation  of 
its  various  parts.  It  is  a  simple  action  to  recover  the  price  of  a  thing 
sold.  "Judex  esto,  Quod  Aulus  Agerius  Numerio  Negidio  hominem  ven- 
diditj  si  paret  Numerium  Negidium  Aulo  Agerio  sestertium  X  milUa  dare 


§  4  EQUITY    JUEISPEUDENCE.  4 

§  4.  These  formulas  were  the  regular  steps  or  processes 
in  a  cause  prior  to  the  trial,  reduced  to  writing,  but  always 
carefully  regulated  by  fixed  rules,  and  conducted  in  accord- 

oportere,  judex  Numerium  Negidium  Aulo  Agerio  sestertium  X  niillia 
condemnato,  si  non  paret,  absolvito. 

The  judex  esto,  "let  there  be  a  judex,"  is  merely  the  order  for  tlie 
appointment  of  a  judex.  The  formula  consists  of  three  distinct  parts. 
From  quod  to  vendidit  is  the  demonstratio ,  from  si  paret  to  dare  oportere 
is  the  intentio;  and  from  judex  to  the  end  is  the  condemnatlo.  The 
formula  ordinarily  contained  only  these  three  parts. 

The  demonstratio  is  the  general  statement  of  facts  which  are  the  cronnd 
of  plaintiff's  claim  to  recover.  As  in  this  case  Aulus  Agerius,  the  i  Inin^ 
tiff  says  "that  Aulus  Agerius  sold  a  slave  to  Nuraerius  Negidius."  The 
demonstratio  varied,  of  course,  in  each  particular  ease.  The  intentio  is 
the  most  important  part.  It  is  the  precise  statement  of  the  legal  demand 
made  by  the  plaintiff;  it  presents  and  embodies  the  exact  question  of  law 
involved  in  the  case,  and  depending  upon  the  facts  as  they  shall,  be 
established  one  way  or  the  other.  It  must,  therefore,  exactly  meet  the 
law  which  would  govern  the  facts  alleged  by  the  plaintiff,  if  true. 
Whether  in  this  case  the  plaintiff  sold  the  slave  to  the  defendant  at  the 
price  alleged,  and  whether  the  debt  is  still  owing,  is  the  matter  to  be 
decided  by  the  judex.  If  it  appear  to  the  judex  {si  paret)  that  Numei-ius 
Negidius  ought  to  pay  to  Aulus  Agerius  ten  thousand  sesterces,  then  the 
judex  is  to  pronounce  judgment  against  him;  if  it  does  not  so  appear  to 
the  judge,  then  he  is  to  acquit.  The  condemnatio  is  the  direction  to  the 
judex  to  condemn  or  to  acquit,  according  to  the  true  circumstances  of  the 
ease. 

The  condemnatio  was  always  pecuniary,  a  direction  to  condemn  the 
defendant  to  pay  a  sum  of  money.  The  various  modifications  in  the 
actions  by  the  praetors  largely  consisted  in  their  adding  other  kinds  of 
specific  reliefs,  which  might  be  awarded.  Thus  in  three  actions,  to  par- 
tition a  family  inheritance,  to  divide  the  property  of  partners,  and  to 
settle  boundaries,  the  judex  was  directed  "to  adjudicate"  the  thing,  in 
the  sense  of  distributing  it  among  the  litigants  entitled  to  portions.  In 
these  actions  there  was  a  fourth  part  of  the  formula  containing  such 
direction,  and  called  the  adjudicatio.  Where  the  action  was  brought  to 
recover  a  thing,  and  not  a  sum  of  money,  the  condemnatio  sometimes  left 
the  sum  to  be  paid  by  defendant  to  be  fixed  by  the  judex,  at  his  discre- 
tion; and  sometimes  inserted  the  words  nisi  restituat,  so  that  the  defend- 
ant was  only  ordered  to  pay  the  sum  of  money,  if  lie  refused  or  neglected 
to  restore  or  deliver  up  the  thing  to  the  plaintiff.  See  Pomeroy's  Intro- 
duction to  Municipal  Law,  §§  183,  184. 


5  OEIGIN    OF    EQUITY    JURISPRUDENCE.  §  4 

ance  with  prescribed  forms.  The  parties  appeared  before 
the  magistrate,  and  the  formula  was  prepared  by  him,  or 
under  his  direction.  It  contained,  as  the  most  important 
elements,  what  we  would  call  the  "pleadings,"  namely,  a 
statement  of  the  plaintiff's  cause  of  action,  bearing  different 
names  in  different  actions,  which  was  expressed  in  certain 
technical  language,  varying  with  the  nature  of  the  action, 
of  the  claim,  and  of  the  relief  asked;  the  defendant's  an- 
swer, also  varying  according  to  the  action  and  the  defense ; 
it  also  contained  the  appointment  of  the  lay  person  who  was 
to  try  the  issue  and  render  judgment,  the  judex  or  the 
arbiter ;  the  rule  of  law  which  was  to  govern  him,  not  stated, 
however,  as  an  abstract  proposition,  but  simply  as  a  direc- 
tion, in  short  and  technical  terms,  to  render  such  a  judg- 
ment if  the  plaintiff  proved  the  case  stated  in  the  pleading, 
otherwise  to  dismiss  the  suit.  The  whole  formula  was  con- 
tained in  a  few  brief  sentences,  and  the  technical  words  or 
phrases  used  indicated  clearly  the  nature  of  the  action,  the 
relief  to  be  given,  the  defenses  to  be  admitted,  and  the  legal 
rule  to  be  followed.  The  contrast  between  its  brevity^ 
simplicity,  and  at  the  same  time  comprehensiveness,  and 
the  repetitions,  redundancy,  verbiage,  and  obscurity  of 
the  later  common-law  special  pleadings,  is  very  striking 
and  instructive.  The  formula  being  thus  prepared  before 
the  magistrate  (the  cause  being  at  that  stage  in  jure),  the 
parties  then  went  before  the  "judex,"  or  "arbiter,"  and 
proceeded  with  the  trial  (the  cause  being  then  in  judicio). 
He  heard  the  testimony  and  the  arguments  of  counsel,  and 
rendered  the  judgment ;  but  the  cause  was  thereupon  taken 
before  the  magistrate  a  second  time,  who  enforced  the 
judgment  and  also  possessed  a  revisory  authority  over  the 
decision  of  the  judex.  It  is  plain  that  the  functions  of  the 
"judex"  corresponded  closely  with  those  of  our  jury; 
and  even  his  power  in  rendering  the  judgment  was  not 
essentially  different  from  that  of  the  jury  in  giving  their 
verdict,  since  the  judgment  itself,  which  ought  to  be  ren- 
dered, was  prescribed  in  the  direction  of  the  formula,  and 


§  5  EQUITY   JUEISPKUDENCE,  6 

the  judex  had  no  more  authority  than  the  jury  has  in  deter- 
mining the  rule  of  law  whioh  should  govern  the  rights  of  the 
parties.!  The  functions  of  the  magistrates  were  more 
complex. 

§  5.  The  most  important  magistrates,  after  the  develop- 
ment of  the  Roman  law  had  fairly  commenced,  and  down 
to  the  period  under  the  empire  at  which  the  administration 
was  entirely  remodeled,  were  the  praetors  Urban  and  Pere- 
grine {Prcctor  IJrhanus,  Prcetor  Peregrinus).  The  praetor, 
in  the  totality  of  his  juridical  functions,  corresponded  both 
to  the  English  common-law  courts  and  the  Chancellor.  As 
the  English  courts,  by  means  of  their  legislative  function, 
have  built  up  the  greater  part  of  the  law  of  England,  so 
did  the  praetors,  by  the  exercise  of  the  same  function,  con- 
struct the  largest  part  of  the  Roman  jurisprudence,  which 
was  afterwards  put  into  a  scientific  shape  by  the  great 
jurists  of  the  empire,  and  was  finally  codified  in  the  Pan- 
dects of  Justinian.  This  legislative  work  of  theirs  was 
done  in  a  manner  and  form  so  outwardly  different  from 
that  of  the  English  judges,  that  many  writers,  and  espe- 
cially the  German  commentators,  who  seem  utterly  unable 
to  comprehend  in  its  fullness  the  legislative  attributes,  both 
of  the  English  and  the  Roman  judicial  magistrates,  have 
failed  to  perceive  the  identity.  The  identity,  however,  ex- 
ists, and  the  differences  are  wholly  formal.  The  legislative 
work  of  the  English  and  American  courts  has  been  and  still 
is  done  in  the  judgments  and  opinions  rendered  upon  the 
decision  of  cases  after  the  events  have  happened  which 

§  4,  1  Of  course  it  is  not  claimed  by  me  that  tbe  "judex."  or  "arbiter," 
was  identical  with  our  jury,  nor  that  he  was  the  historical  source  of  the 
jury.  AH  that  I  assert  is,  that  there  are  striking  analogies  between  the 
two;  and  of  this  no  unprejudiced  student  of  jurisprudence  can,  for  a 
moment,  doubt.  I  make  this  remark  because  the  teachings  of  some  Ger- 
man professors  indicate  an  entire  incapacity  on  their  part  to  understand 
the  development  of  the  Roman  jurisprudence  under  the  light  thrown 
upon  it  by  the  historical  progress  of  the  English  law.  See  Pomeroy's 
Introduction  to  Municipal  Law,  §§  315,  316,  317. 


7  ORIGIN    OF    EQUITY    JURISPRUDENCE.  §  6 

called  for  such  official  utterances.  The  same  work  of  the 
Roman  prretors  was  done  in  the  edicts  (edicta)  which  they 
issued  upon  taking  office,  and  which  in  process  of  time  be- 
came one  continuous  body  of  law,  each  magistrate  taking 
what  had  been  left  by  his  predecessors,  and  altering,  amend- 
ing, or  adding  to  the  same,  as  the  needs  of  an  advancing 
civilization  required.  The  form  of  this  edict  was  peculiar. 
Instead  of  laying  down  abstract  propositions  defining  pri- 
mary rights  and  duties,  or  publishing  formal  commands 
similar  to  modern  statutes,  the  magistrates  announced  that 
under  certain  specified  circumstances  a  remedy  would  be 
granted  by  means  of  a  designated  action,  where  the  prior 
law  gave  no  such  remedy;  or  that  under  certain  circum- 
stances, if  a  person  attempted  to  enforce  a  rule  of  the  prior 
law  by  action,  a  defense  which  had  not  existed  before  would 
be  admitted  and  sustained. 

§  6.  The  jurisdiction  of  the  praetors,  which  was  exer- 
cised by  means  of  formulas,  and  in  which  a  judex  or  other 
lay  person  was  called  in  to  decide  the  issues  of  fact,  was 
called  his  ''ordinary"  jurisdiction.  In  the  later  periods 
of  the  republic,  there  arose  another  jurisdiction  termed 
the  "extraordinary"  {extra  ordinem).  In  causes  coming 
under  this  jurisdiction,  the  magistrate  himself  decided  both 
the  law  and  the  facts,  without  the  intervention  of  any 
judex,  and  unhampered  by  any  technical  requirements  as 
to  the  proper  formula  or  kind  of  action.  The  plaintiff  al- 
leged the  facts  making  out  his  cause  of  action,  the  defend- 
ant set  forth  his  defense,  and  the  magistrate  decided.  By 
this  method  remedies  could  be  given  which  were  not  pro- 
vided for  in  any  of  the  existing  forms  of  action,  and  equi- 
table notions  could  be  more  freely  applied,  and  thus 
incorporated  into  the  growing  mass  of  the  national  juris- 
prudence. In  this  extraordinary  jurisdiction  we  can 
plainly  see  the  prototype  of  English  chancery  procedure; 
while  the  ordinary  methods  by  formulas  were  as  certainly 
the  analogues  of  the  common-law  forms  of  action.     The 


§  7  EQUITY    JURISPRUDENCE.  8 

extraordinary  jurisdiction  continued  for  a  long  time  side 
by  side  with  the  ordinary,  growing  in  extent  and  importance 
until  it  became  the  only  mode  in  common  use.  By  a  con- 
stitution of  the  Emperor  Diocletian  (A.  D.  294),  all  causes 
in  the  provinces  were  required  to  be  tried  in  this  manner; 
and  finally  the  same  rule  was  made  universal  throughout 
the  empire.  Here,  again,  we  may  see  another  of  the  repeti- 
tions which  history  exhibits  under  the  operation  of  like 
social  forces.  This  event  in  the  Eoman  jurisprudence  was 
in  all  its  essential  elements  similar  to  the  recent  legislation 
of  Great  Britain  and  of  the  American  states,  by  which  all 
distinction  between  suito  in  equity  and  actions  at  law  has 
been  abolished,  and  the  two  jurisdictions  have  been  com- 
bined in  the  same  proceeding  and  conferred  upon  the  same 
tribunal. 

§  7.  As  has  been  already  stated,  the  legislative  work  of 
the  praetors  was  accomplished  by  the  introduction  of  new 
actions,  whereby  a  right  could  be  enforced,  which  the  law 
prior  to  that  time  did  not  recognize,  or  which  it  perhaps 
absolutely  denied.  The  number  of  particular  actions  thus 
invented  or  allowed  by  the  praetorian  law  was  large,  and 
they  have  been  separated  by  the  commentators  into  many 
classes,  according  to  various  lines  of  division.  It  will  be 
sufficient  for  my  purposes  of  description  to  arrange  them 
in  three  groups.  The  early  law  of  Rome  which  existed 
prior  to  the  time  when  the  praetorian  development  fairly 
commenced,  and  the  external  form  or  shell  of  which  was 
preserved  through  a  large  part  of  that  development, — the 
jus  civile, — was  exceedingly  stern,  rigid,  formal,  and  arbi- 
trary, pajdng  little  attention  to  abstract  right  and  justice, 
reflecting  in  every  part  the  character  and  customs  of  the 
primitive  Romans.  It  admitted  certain  prescribed  actions 
and  defenses  appropriate  for  certain  facts  and  circum- 
stances, but  for  other  facts  and  circumstances  differing 
from  those  to  which  the  existing  actions  or  defenses  were 
exactly  adapted,  it  furnished  no  remedy.     In  their  work  of 


y  ORIGIN    OF    EQUITY    JURISPRUDENCE.  §  7 

building  up  a  broader  jurisprudence  upon  the  narrow  basis 
of  this  ancient  jus  civile,  the  praetors,  in  the  first  place, 
introduced  a  class  of  actions  which  were  substantially  the 
same  as  those  provided  by  the  existing  law,  unaltered  in 
any  of  their  essential  features,  but  enlarged  in  the  scope 
of  their  operation.  In  other  words,  the  magistrates  em- 
ployed the  old-established  actions  of  the  jus  civile,  with- 
out changing  the  technical  words,  phrases,  and  parts  of 
their  formulae,  but  extended  their  application  to  new  cases, 
facts,  and  circumstances.  These  new  facts  and  circum- 
stances did  not  differ  widely  from  the  subject-matter  to 
which  the  actions  had  been  originally  adapted  by  the 
former  law ;  they  necessarily  came  within  the  same  general 
principle  which  had  furnished  the  rule  of  decision  before 
the  scope  of  the  actions  was  thus  enlarged.  In  a  similar 
manner,  the  English  law  courts  have,  in  later  times,  used 
the  ancient  actions  of  debt,  covenant,  and  trespass,  without 
altering  their  technical  forms,  for  the  decision  of  issues 
which  had  not  arisen  in  the  earlier  periods  of  the  common 
law.  The  second  of  the  three  groups  or  classes  contained 
a  large  number  of  new  actions  first  allowed  by  the  praetors, 
which,  though  not  substantially  the  same,  were  analogous 
or  similar  in  their  nature  and  objects  to  those  which  ex- 
isted in  the  ancient  jus  civile.  The  formulas  of  these  new 
actions  bore  a  general  resemblance  to  those  of  the  old,  and 
were  indeed  patterned  after  them,  but  still  differed  from 
them  in  various  important  particulars.  Necessary  changes 
were  made  in  the  statement  of  the  plaintiff's  cause  of  ac- 
tion, of  the  defendant's  defense,  or  of  the  direction  for 
the  judgment  addressed  to  the  judex  or  the  arbiter.  New 
cases  were  thus  provided  for;  new  rules  of  law  were  intro- 
duced, old  ones  were  modified  or  repealed.  The  number  of 
particular  actions  embraced  in  this  class  was  large,  and  in 
the  course  of  the  legal  development  from  age  to  age,  the 
praetors  were  enabled  by  their  means  to  soften  the  rigor 
of  the  old  law,  to  remove  its  arbitrariness,  and  to  mold  its 
doctrines  into  a  nearer  conformity  with  the  principles  of 


§  8  EQUITY    JUEISPRUDBNCE.  10 

right  and  justice.  The  actions  comprised  in  this  class,  and 
the  service  which  they  rendered  in  improving  the  Homan 
law,  were  strictly  analogous  to  the  actions  of  ejectment, 
case,  trover,  and  especially  assumpsit,  and  the  work  which 
they  have  performed  in  expanding  and  ameliorating  the 
common  law.  The  third  class  consists  of  the  new  actions 
introduced  from  time  to  time,  which  were  wholly  different, 
both  in  principle  and  form,  from  any  that  had  existed  under 
the  old  law.  In  their  invention  the  magistrate  dissevered 
all  connection  with  the  ancient  methods,  and  by  their  use, 
more  than  by  any  other  means,  he  constructed  a  jurispru- 
dence founded  upon  and  interpenetrated  by  equitable  doc- 
trines which  finally  supplanted  the  old  jus  civile,  and  be- 
came the  Roman  law  as  it  was  scientifically  arranged  by  the 
great  jurists  of  the  empire,  and  is  known  to  us  as  the 
Pandects  and  Institutes  of  Justinian.^ 

§  8.  In  their  work  of  improving  the  primitive  jus  civile, 
the  magistrates  who  issued  edicts  (who  possessed  the  jus 
edicendi),  and  the  jurisconsults  who  furnished  authorita- 
tive opinions  (respo7isa)  to  aid  the  praetors  (those  who 
possessed  the  jus  respondendi),^  obtained  their  material 

§7,  1  Pomeroy's  Introduction  to  Municipal  Law,  §§  185-1 92 ;  San- 
dars's  Institutes  of  Justinian,  pp.  67-71;  Poste's  Institutes  of  Gains, 
pp.  368,  400-406;  Phillimore's  Private  Law  among  the  Romans, 
pp.  150-159. 

§  8,  1  I  have  not,  in  the  foregoing  paragraphs,  discussed  the  peculiar 
functions  of  the  jurisconsults,  and  the  effect  of  their  "responses,"  because 
it  was  my  object,  not  to  describe  the  Roman  law  at  large,  but  simply  to 
point  out  the  analogies  between  its  modes  of  development,  and  those  of 
our  own  law.  I  will,  however,  state  the  conclusion  readied  by  the  ablest 
modern  scholarship :  That  although  the  responses  of  the  jurisconsults 
always  had  a  high  authority,  and  although  during  a  long  period  of  time 
the  magistrates  were  bound  under  certain  limitations  to  adopt  their  official 
opinions  as  precedents,  yet  the  magistrate  alone  possessed  the  creative 
function  of  legislating^  of  making  law.  He  went  to  the  opinions  of  the 
official  jurisconsults  for  his  material,  for  the  sources  of  his  legislation ; 
but  those  opinions  did  not  obtain  the  compulsive  efficacy  of  laio^  until 
they  had  been  adopted  by  the  judicial  magistrate,  and  reissued  by  him 


11  OKIGIN    OF    EQUITY    JURISPRUDENCE.  §  8 

from  two  sources,  namely :  At  first,  from  what  they  termed 
the  jus  gentium,  the  law  of  nations,  meaning  thereby  those 
rules  of  law  which  they  found  existing  alike  in  the  legal 
systems  of  all  the  peoples  with  which  Rome  came  into  con- 
tact, and  which  they  conceived  to  have  a  certain  universal 
sanction  arising  from  principles  common  to  human  nature ; 
and  at  a  later  day,  from  the  Stoic  theory  of  morality,  which 
they  called  lex  nahirce,  the  law  of  nature.  The  doctrines 
of  this  jus  gentium  and  of  this  lex  naturce  were  often  iden- 
tical, and  hence  arose  the  conception,  generally  prevalent 
among  the  juridical  writers  of  the  empire,  that  the  ''nat- 
ural law"  {lex  naturce)  and  the  ''law  of  nations"  {jus  gen- 
tium) were  one  and  the  same;  or  in  other  words,  that  the 
doctrines  which  were  found  common  to  all  national  systems 
were  dictated  by  and  a  part  of  this  natural  law.  The  par- 
ticular rules  of  the  Roman  jurisprudence  derived  from  this 
morality,  called  the  law  of  nature,  were  termed  ^'cequitas,^^ 
from  cequum,  because  they  were  supposed  to  be  impartial 
in  their  operation,  applying  to  all  persons  alike.  The  lex 
naturcB  was  assumed  to  be  the  governing  force  of  the 
world,  and  was  regarded  by  the  magistrates  and  jurists 
as  having  an  absolute  authority.  They  felt  themselves, 
therefore,  under  an  imperative  obligation  to  bring  the  juris- 
prudence into  harmony  with  this  all-pervading  morality, 
and  to  allow  such  actions  and  make  such  decisions  that  no 
moral  rule  should  be  violated.  Whenever  an  adherence  to 
the  old  jus  civile  would  do  a  moral  wrong,  and  produce  a 
result  inequitable  {inmquum),  the  praetor,  conforming  his 
edict  or  his  decision  to  the  law  of  nature,  provided  a  remedy 
by  means  of  an  appropriate  action  or  defense.  Gradually 
the  cases,  as  well  as  the  modes  in  which  he  would  thus  in- 
terfere, grew  more  and  more  common  and  certain,  and  thus 
a  body  of  moral  principles  was  introduced  into  the  Roman 

through  the  means  of  his  edict  or  his  decisions.  The  theory  long  main- 
tained, that  the  jurisconsults  possessed  the  power  of  legislating,  and  (hat 
they  created  the  Roman  jurisprudence,  has  been  abandoned.  See  Pom- 
eroy's  Introduction  to  Municipal  Law,  §  §  315-317. 


§  9  EQUITY    JUEISPBUDENCE.  12 

law,  which  constituted  equity  {(Equitas) .^  This  resulting 
equity  was  not  a  separate  department;  it  penetrated  the 
entire  jurisprudence,  displacing  what  of  the  ancient  system 
was  arbitrary  and  unjust,  and  bringing  the  whole  into  an 
accordance  with  the  prevailing  notions  of  morality.  In  its 
original  sense,  cequitas,  cequum,  conveyed  the  conception 
of  universality,  and  therefore  of  impartiality,  a  having 
regard  for  the  interests  of  all  whose  interests  ought  to  be 
regarded,  as  contrasted  with  the  having  an  exclusive  or 
partial  regard  for  the  interests  of  some,  which  was  the 
essential  character  of  the  old  jus  civile.  At  a  later  period, 
and  especially  after  the  influence  of  Christianity  had  been 
felt,  the  signification  of  cequitas  became  enlarged,  and  was 
made  to  embrace  our  modern  conceptions  of  right,  duty, 
justice,  and  morality. 

§  9.  There  are  certainly  many  striking  analogies  be- 
tween the  growth  of  equity  in  the  Roman  and  in  the  Eng- 
lish law;  the  same  causes  operated  to  make  it  necessary, 
the  same  methods  were  up  to  a  certain  point  pursued,  and 
in  principle  the  same  results  were  reached.  The  differ- 
ences, however,  are  no  less  remarkable.  No  separate  tri- 
bunal or  department  was  made  necessary  in  the  Eoman 
jurisprudence,  because  the  ordinary  magistrates  were  will- 
ing to  do  what  the  early  English  common-law  judges  ut- 
terly refused  to  perform;  that  is,  to  promote  and  control 
the  entire  legal  development  as  the  needs  of  an  advancing 
civilization  demanded.  While  these  common-law  judges 
resisted  every  innovation  upon  their  established  forms,  and 
shut  up  every  way  for  the  legal  growth,  the  Eoman  magis- 
trates were  the  leaders  in  the  work  of  reform,  and 
constantly  anticipated  the  wants  of  the  community.  The 
English  judges  made  a  new  court  and  a  separate  depart- 
ment   indispensable;    the    Eoman    prsetors    accomplished 

§  8,  2  See  Sandars's  Institutes  of  Justinian,  pp.  13,  14 ;  Phillimore's 
Private  Law  among  the  Romans,  pp.  21,  22;  2  Austin  on  Jurisi:)rudence, 
pp.  240-267. 


13  ORIGIN    OF    EQUITY    JURISPRUDENCE.  §§10,11 

every  reform  by  means  of  their  own  jurisdiction,  and  pre- 
served in  the  jurisprudence  a  unity  and  homogeneity 
which  the  English  and  American  law  lacks,  and  which  it 
can  perhaps  never  acquire.  Both  these  resemblances  and 
these  contrasts  are  exhibited  in  the  following  paragraphs, 
which  describe  the  introduction  of  equity  into  the  English 
system  of  jurisprudence. 

§  10.  Origin  of  Equity  in  the  English  Law  —  Primitive 
Condition  of  the  Law  and  the  Courts. — During  the  Anglo- 
Saxon  and  early  Norman  periods,  the  law  of  England  was, 
like  that  of  all  peoples  in  the  first  stages  of  their  develop- 
ment, to  a  large  extent  consuetudinary.  The  primitive 
Saxon  Codes,  except  so  far  as  they  re-enacted  certain  pre- 
cepts taken  from  the  Holy  Scriptures,  or  borrowed  a  few 
provisions  from  the  then  known  remains  of  the  Roman  law, 
were  chiefly  redactions  of  prior  existing  customs.  The 
Saxon  local  folk  courts,  and  even  the  supreme  tribunal  of 
the  Witana-gemote,  not  being  composed  of  professional 
judges,  were  certainly  guided  in  their  decisions  of  particu- 
lar controversies  by  customs  which,  when  established  and 
certain,  were  considered  as  having  the  same  obligatory 
character  which  we  give  to  positive  law.i 

§  11.  In  the  reign  of  William  the  Conqueror  the  local  folk 
courts  of  the  Saxon  polity  were  left  in  existence ;  and  they, 
together  with  the  manor  courts  of  the  Norman  barons,  con- 
tinued to  be  the  tribunals  of  first  resort  (to  use  a  modern 
term)  for  the  trial  of  ordinary  disputes,  through  several 
succeeding  reigns;  but  they  gradually  lost  their  functions 
and  sunk  into  disuse  as  the  more  strictly  professional  tri- 
bunals grew  in  importance  and  extended  their  jurisdiction, 
until  they  were  finally  superseded  by  the  itinerant  justices 
appointed  by  the  crown  or  by  the  King's  Court  as  repre- 
sentative  of  the   crown.     William,  however,   made   some 

§  10,  1  As  to  the  apccount  in  following  paragraphs,  see  1  Speuce's  Eq. 
Jur.,  pp.  87-128. 


§  12  EQUITY    JURISPRUDENCE.  14 

most  important  innovations.  In  the  Curia  Regis,  King's 
Court,  which  then,  and  for  a  considerable  time  afterwards, 
was  a  body  composed  of  barons  and  high  ecclesiastics  with 
legislative,  judicial,  and  administrative  functions  as  yet  un- 
separated,  he  appointed  a  Chief  Justiciary  to  preside  over 
the  hearing  of  suits.  This  creation  of  a  permanent  judicial 
officer  was  the  germ  of  the  professional  common-law  tri- 
bunals having  a  supreme  jurisdiction  throughout  England, 
which  subsequently  became  established  as  a  part  of  the 
government,  disti:'  t  from  the  legislative  and  the  executive. 
He  also  appointed,  from  time  to  time,  as  occasion  required, 
itinerant  justices  to  travel  about  and  hold  "pleas"  or  pre- 
side over  the  Shire  Courts  in  the  different  counties.  These 
officers  were  temporary,  and  ceased  when  their  special 
duties  had  been  performed,  but  they  were  the  beginning  of 
a  judicial  system  which  still  prevails  in  England,  and  which 
has  been  adopted  in  many  of  the  American  states. 

§  12.  The  organization  thus  made  or  permitted  by  "Will- 
iam continued  without  any  substantial  change,  but  yet  with 
gradual  modifications  and  progressive  improvements, 
through  several  of  the  succeeding  reigns.  The  business  of 
the  King's  Court  steadily  and  rapidly  increased;  under 
Henry  II.  its  judicial  functions  were  finally  separated  from 
the  legislative,  and  from  that  time  until  its  abolition  in 
1874,  it  has  continued  to  be  the  highest  common-law  tribu- 
nal of  original  jurisdiction,  under  the  name  of  the  Court 
of  King's  Bench.  In  the  reign  of  Henry  I.  itinerant  justices 
were  sometimes  appointed,  as  by  William  the  Conqueror, 
and  under  Henry  II.  their  office  and  functions  were  made 
permanent;  but  during  the  reign  of  Edward  III.  their 
places  were  filled  and  their  duties  performed  by  the  jus- 
tices of  the  Superior  Courts,  acting  under  special  commis- 
sions empowering  them  to  hold  courts  of  oyer  and 
terminer  and  of  nisi  prius.  These  itinerant  justices — 
*' justices  in  eyre" — went  from  county  to  county,  holding 
pleas  civil  and  criminal,  and  as  a  consequence  the  old  local 


15  ORIGIN    OF    EQUITY    JURISPEUDENCE.  §  12 

courts  of  the  shire,  hundred,  and  manor  were  abandoned  as 
means  of  determining  controversies  between  litigant  ])ar- 
ties.  The  King's  Court,  even  after  it  became  a  purely  judi- 
cial bod}^,  was  attached  to  the  person  of  the  King,  and  fol- 
lowed him  in  his  journeys  and  residences  in  different  parts 
of  the  realm.  The  great  inconvenience  to  suitors  resulting 
from  this  transitory  quality  of  the  court  was  remedied  Ijv 
Magna  Charta,  which  provided  in  one  of  its  articles  that 
* '  Common  Pleas  shall  no  longer  follow  the  King. ' '  In  obe- 
dience to  this  mandate  of  the  Charter,  justices  were  ap- 
pointed to  hear  controversies  concerning  lands,  and  other 
matters  purely  civil, — known  as  ''common"  pleas, — and 
the  new  tribunal  composed  of  these  judges  was  fixed  at 
Westminster.  Thus  commenced  the  Court  of  Common 
Bench.  The  third  superior  common-law  tribunal  acquired 
its  powers  in  a  much  more  irregular  manner.  In  arran- 
ging his  government,  William  the  Conqueror  had  estab- 
lished a  board  of  high  officials  to  superintend  and  manage 
the  royal  revenues,  and  a  number  of  barons,  with  the  chief 
justiciary,  were  required  to  attend  the  sittings  of  this 
board,  in  order  to  decide  the  legal  questions  which  might 
arise.  These  judicial  assessors,  in  the  course  of  time,  be- 
came the  Court  of  Exchequer,  a  tribunal  whose  authority 
originally  extended  only  to  the  decision  of  causes  directly 
connected  with  the  revenue,  but  its  jurisdiction  was  subse- 
quently enlarged,  through  the  use  of  legal  fictions,  and 
thus  made,  to  a  certain  extent,  concurrent  with  that  of  the 
two  other  Superior  Law  Courts.  The  office  of  Chancellor 
was  very  ancient.  It  had  existed  before  the  conquest,  and 
was  continued  by  William.  Under  his  successors,  the 
Chancellor  soon  became  the  most  important  functionary 
of  the  King's  government,  the  personal  adviser  and  repre- 
sentative of  the  crown,  but,  in  the  very  earliest  times, 
without,  as  it  seems,  any  purely  judicial  powers  and  duties 
annexed  to  the  position.  How  these  functions  were  ac- 
quired, it  is  the  main  purpose  of  this  historical  sketch  to 
describe.     The  three  superior  law  courts  whose  origin  has 


§  13  EQUITY   JURISPRUDENCE.  16 

thus  been  stated  have  remained,  with  some  statutory  modi- 
fication, through  the  succeeding  centuries,  until,  by  the 
Judicature  Act  of  1873,  which  went  into  operation  Novem- 
ber 2,  1875,  they  and  the  Court  of  Chancer}^,  and  certain 
other  courts,  were  abolished  as  distinct  tribunals,  and  were 
consolidated  into  one  '  *  Supreme  Court  of  Judicature. ' '  ^ 

§  13.  The  local  folk  courts  left  in  existence  at  the  con- 
quest, and  even  the  itinerant  justices  and  the  central  King's 
Court,  for  a  while  continued  to  administer  a  law  which  was 
largely  customary.  The  progress  of  society,  the  increase  in 
importance  of  property  rights,  the  artificial  system  which 
we  call  feudalism,  with  its  mass  of  arbitrary  rules  and 
usages,  all  demanded  and  rapidly  produced  a  more  com- 
plete, certain,  and  authoritative  jurisprudence  for  the 
whole  realm  than  the  existing  popular  customs,  however 
ancient  and  widely  observed.  This  work  of  building  up  a 
positive  jurisprudence  upon  the  foundation  of  the  Saxon 
customs  and  feudal  usages,  this  initial  activity  in  creating 
the  common  law  of  England,  was  done,  not  by  parliamentary 
legislation  nor  by  royal  decrees,  but  by  the  justices  in  their 
decisions  of  civil  and  criminal  causes.  The  law  which  had 
been  chiefly  customary  and  therefore  unwritten,  preserved 
by  tradition,  lex  non  scripta,  was  changed  in  its  form  by 
being  embodied  in  a  series  of  judicial  precedents  preserved 
in  the  records  of  the  courts,  or  published  in  the  books  of 
reports,  and  thus  it  became,  so  far  as  these  precedents  ex- 
pressed its  principles  and  rules,  a  written  law,  lex  scripta^ 

§  12,  1  36  &  37  Vict.,  chap.  66,  §  3 :  "From  and  after  the  time  ap- 
pointed for  the  commencement  of  this  act,  the  several  courts  hereinafter 
mentioned  (that  is  to  say),  the  High  Court  of  Chancery  of  England,  the 
Court  of  Queen's  Bench,  the  Court  of  Common  Pleas  at  Westminster,  the 
Court  of  Exchequer,  the  High  Court  of  Admiralty,  the  Court  of  Probate, 
the  Court  for  Divorce  and  Matrimonial  Causes,  and  the  London  Court  of 
Bankruptcy,  shall  be  united  and  consolidated  together,  and  shall  consti- 
tute, under  and  subject  to  the  provisions  of  this  Act,  one  Supreme  Court 
of  Judicature  in  England." 

§  13,  1  The  division  of  "written"  and  "unwritten"  law  made  by  Black- 
stone,  and  writers  "who  have  copied  his  notions,  which  makes  the  "written" 


17  ORIGIN    OF    EQUITY    JUKISPRUDENCE.  §  14 

§  14.  Early  Influences  of  the  Roman  Law. — In  this 
work  of  constructing  a  jurisprudence,  the  early  common- 
law  judges,  as  well  as  the  Chancellor  at  a  later  day,  drew 
largely  from  their  own  knowledge  of  the  Eoman  law.  The 
evidence,  both  internal  and  historical,  is  conclusive  that 
the  common  law  of  England,  in  the  earliest  formative 
period,  was  much  indebted  to  that  Roman  jurisprudence 
which  enters  so  largely  into  the  judicial  systems  of  all  the 
western  nations  of  the  European  continent.  Besides  the 
proof  furnished  by  the  law  itself,  several  important  facts 
connected  with  the  external  history  of  its  primitive  stages 
point  to  this  conclusion.  The  clergy,  who  possessed  all  the 
learning  of  the  times,  were  students  of  the  Roman  law. 
The  earliest  justices  of  the  common-law  courts,  as  well  as 
the  chancellors,  were  generally  taken  from  the  higher  or- 
ders of  ecclesiastics ;  and  on  all  occasions  where  it  was 
necessary  for  them  to  legislate  in  the  decision  of  particular 
cases,  to  create  new  rules  for  relations  hitherto  undeter- 
mined, they  naturally  had  recourse  to  the  code  with  which 
they  were  familiar,  borrowed  many  of  its  doctrines,  and 
adopted  them  as  the  ground  of  their  judgments.  Nor  was 
a  knowledge  of  the  Roman  law  confined  to  the  courts;  its 
study  became  a  part  of  what  would  now  be  called  the  higher 
education.  When  the  spirit  of  free  inquiry  was  suddenly 
awakened  at  the  commencement  of  the  twelfth  century,  one 
of  its  most  remarkable  manifestations  was  shown  in  the 
scientific  study  of  the  Roman  law  which  began  at  the  Uni- 
versity of  Bolog-na  in  1120,  and  soon  extended  over  western 
Europe.  In  1143,  Archbishop  Theobald,  who  had  himself 
studied  at  Bologna,  brought  a  distinguished  civilian,  Vaca- 

ideutical  with  the  statutory,  and  describes  the  entire  portion  embodied  in 
judicial  decisions  as  "unwritten,"  is  simply  absurd.  This  definition  is 
another  instance  of  Blackstone's  mistaking  the  meaning  of  Roman  law 
terms.  The  lex  non  scripta  is  customary,  traditional,  preserved  in  the 
popular  memory;  a  law  expressed  in  judicial  records  or  in  statutes  is 
written.  The  Roman  prgetorian  edicts  formed  a  part  of  the  lex  scripta 
as  much  as  the  leges  or  the  imperial  "constitutions." 
1—2 


§  15  EQUITY    JUEISPRUDENCE,  18 

rius,  into  England,  and  this  jurist  in  1149  established  a 
school  of  the  Roman  law  at  the  University  of  Oxford,  which 
soon  rose  to  an  eminence  second  only  to  those  of  Paris  and 
of  Bologna.  King  Stephen  afterwards  prohibited  Vaca- 
rius  from  public  teaching,  but  this  act,  instead  of  stopping 
the  study  in  England,  produced  the  contrary  effect  of  stim- 
ulating and  promoting  it.  Bracton's  celebrated  work,  De 
Legibus  et  Consuetudinibus  Anglige,  written  between  A.  D. 
1256  and  1259,^  and  which  is  an  epitome  or  systematic  in- 
stitute of  the  common  law  as  it  then  existed,  exhibits  in  the 
plainest  manner  the  results  of  the  judicial  labor  and  scien- 
tific study  which  had  preceded  it.  A  considerable  portion 
of  its  doctrines,  and  even  of  the  terms  in  which  its  rules 
are  stated,  is  taken  directly  from  standard  treatises  of  the 
day  upon  the  Roman  jurisprudence.  In  the  language  of  a 
recent  writer:  ''As  Roman  legal  matters  obtained  recep- 
tion, although  the  written  sources  of  the  Roman  law  were 
not  at  all  received  as  having  a  legislative  authority,  Brac- 
ton  properly  included  such  Roman  legal  matter  among  the 
leges  et  consuetudines  AnglicB."  ^ 

§  15.  Had  it  not  been  for  several  powerful  causes,  partly 
growing  out  of  the  English  national  character,  or  rather, 
the  character  of  the  Norman  kings  and  barons  who  ruled 
over  England,  and  partly  arising  from  external  events  con- 
nected with  the  government  itself,  it  is  probable  that  this 
work  of  assimilation  and  of  building  up  the  common  law 
with  materials  taken  from  the  never-failing  quarries  of  the 
Roman  legislation,  would  have  continued  throughout  its 
entire  formative  period.  As  the  corpus  juris  civilis  con- 
tains the  results  of  the  labors  of  the  great  philosophic 
jurists  who  brought  the  jurisprudence  of  Rome  to  its  high- 
est point  of  excellence,  and  as  its  rules,  so  far  as  they  are 
concerned  with  private  rights  and  relations,  are  based  upon 

§  14,  1  Braetou  and  his  relations  with  the  Roman  law,  by  Carl  Guter- 
bock;  translated  by  Brinton  Coxe,  p.  24. 
§  14,  2  Ibid,  p.  62. 


19  ORIGIN    OF    EQUITY    JUEISPRUDENCE.  §  16 

principles  of  justice  and  equity,  it  is  also  certain  that  if 
this  work  of  assimilation  had  thus  gone  on,  the  common  law 
of  England  would  from  an  early  day  have  been  molded  into 
the  likeness  of  its  original.  Through  the  decisions  of  its 
own  courts  the  principles  of  justice  and  equity  would  every- 
where have  been  adopted,  and  would  have  appeared 
throughout  the  entire  structure.  All  this  would  have  been 
accomplished  in  the  ordinary  course  of  development,  by  the 
ordinary  common-law  tribunals,  without  any  necessity  for 
the  creation  of  a  separate  court  which  should  be  charged 
with  the  special  function  of  administering  these  principles 
of  right,  justice,  and  equity.  The  growth  of  the  English 
law  would  have  been  identical  in  its  external  form  with  that 
of  Rome;  it  would  have  proceeded  in  an  orderly,  unbroken 
manner  through  the  instrumentality  of  the  single  species  of 
courts,  and  the  present  double  nature  of  the  national  juris- 
prudence— the  two  great  departments  of  ''Law"  and 
** Equity" — would  have  been  obviated.  This  result,  how- 
ever, was  prevented  by  several  potent  causes  which  checked 
the  progress  of  the  law  towards  equity,  narrowed  its  devel- 
opment into  an  arbitrary  and  rigid  form,  with  little  regard 
for  abstract  right,  and  made  it  necessary  that  a  new  juris- 
diction should  be  erected  to  administer  a  separate  system 
more  in  accordance  with  natural  justice  and  the  rules  of  a 
Christian  morality.     These  causes  I  proceed  to  state. 

§  16.  Causes  Which  Made  a  Court  of  Equity  Necessary. 
The  one  which  was  perhaps  the  source  and  explanation  of 
all  the  others  consisted  in  the  rigid  character,  external  and 
internal,  which  the  common  law  soon  assumed  after  it  began 
to  be  embodied  in  judicial  precedents,  and  the  unreasoning 
respect  shown  by  the  judges  for  these  decisions  merely  as 
precedents.  There  was,  of  course,  a  time,  before  the  char- 
acter of  the  law  as  a  lex  scripta  became  well  established, 
when  this  rigidity  and  inflexibility  was  not  exhibited. ^    The 

§  16,  1  Thus  Bracton,  who  wrote  during  this  formative  period,  before 
the   law  had  entirely   assumed   its   rig^id  character,   adopting  the  maxim 


§  16  EQUITY   JURISPRUDENCE.  20 

history  of  civilized  jurisprudence  can  show  nothing  of  the' 
same  kind  comparable  with  the  blind  conservatism  with 
which  the  common-law  judges  were  accustomed  to  regard 
the  rules  and  doctrines  which  had  once  been  formulated  by 
a  precedent,  and  the  stubborn  resistance  which  they  inter- 
posed to  any  departure  from  or  change  in  either  the  spirit 
or  the  form  of  the  law  which. had  been  thus  established. 
The  most  that  was  ever  allowed  was  the  extension  of  a  doc- 
trine to  facts  and  circumstances  presenting  some  points 
of  difference  from  those  which  had  already  formed  the 
subject-matter  of  adjudication,  but  in  which  this  difference 
was  not  so  great  as  to  require  a  substantial  modification 
of  the  principle.  The  frequent  occurrence  of  cases  in  which 
the  rules  of  the  law  produced  manifest  injustice,  and  of 
cases  to  which  the  legal  principles  as  settled  by  the  prece- 
dents could  not  apply,  and  the  unwillingness  of  the  common- 
law  judges  to  allow  any  modification  of  the  doctrines  once 
established  by  their  prior  decisions,  furnished  both  the 
occasion  and  the  necessity  for  another  tribunal,  which 
should  adopt  different  methods  and  exhibit  different  ten- 
dencies.2 

which  he  found  in  the  Roman  law,  In  omnibus,  maxime  tamen  in  jure, 
eequitas  spectanda  est,  asserts  that  the  common-law  courts  should  be 
guided  by  equity  even  in  questions  of  strict  law:  Lib.  2,  chap.  7,  fol.  23  b; 
Lib.  4,  fol.  186.     But  this  doctrine  was  soon  abandoned. 

§  16,  2  This  position  of  resistance,  so  soon  assumed  by  the  common- 
law  judges,  is  well  desci'ibed  by  Mr.  Spence  in  the  following  passage: 
"It  has  always  been  held  by  the  great  oracles  of  the  law  that  the  prin- 
ciples of  the  common  law  are  founded  on  reason  and  equity;  and  as 
long  as  the  conmion  law  was  in  the  course  of  formation,  and  therefore 
continued  to  be  a  lex  non  scripta,  it  was  capable,  as  indeed  it  has  ever 
continued  to  be  to  some  extent,  of  not  only  being  extended  to  cases  not 
expressly  provided  for,  but  which  were  within  the  spirit  of  the  existing 
law,  but  also  of  ha^'ing  the  principles  of  equity  applied  to  it  by  the 
judges  in  their  decisions,  as  circumstances  arose  which  called  for  the 
application  of  such  principles.  But  in  the  course  of  time  a  series  of 
precedents  was  established  by  the  decisions,  or  responsa,  as  Bracton  calls 
them,  of  the  judges,  which  were  considered  of  almost  equally  binding 
authority  on  succeeding  judges  as  were  the  acts  of  the  legislature;  and  it 


21  ORIGIN    OF    EQUITY    JURISPRUDENCE.  §  17 

§  17.  When  the  same  difficulty  of  rigidness,  arbitrari- 
ness, and  non-adaptation  to  the  needs  of  society  began  to 
be  severe!}^  felt  in  the  administration  of  the  law  at  Rome, 
the  magistrates,  as  I  have  before  shown,  supplied  the 
remedy  by  means  which  they  already  possessed.  The  praB- 
tors  constantly  invented  new  actions  and  defenses,  which 
preserved,  however,  a  resemblance  to  the  old ;  and  at  length 
they  boldly  freed  the  jurisprudence  from  the  restraints 
of  the  ancient  methods,  and  introduced  the  notion  of 
ccquitas  by  which  the  whole  body  of  judicial  legislation  be- 
came in  time  reconstructed.  All  the  process  of  develop- 
ment was  completed  without  any  violent  or  sudden  change 
in  the  judicial  institutions,  and  the  Roman  law  thus  pre- 
served its  unity  and  continuity.  The  English  common-law 
judges,  on  the  other  hand,  set  themselves  with  an  iron  de- 
termination against  any  modification  of  the  doctrines  and 
rules  once  established  by  precedent,  any  relaxation  of  the 
settled  methods  which  made  the  rights  of  suitors  to  depend 
upon  the  strictest  observance  of  the  most  arbitrary  and 
technical  forms,  any  introduction  of  new  principles  which 
should  bring  the  law  as  a  whole  into  a  complete  harmony 
with  justice  and  equity.  I  would  not  be  understood  as  as- 
serting that  the  conservatism  of  the  courts  was  so  absolute 
as  to  prevent  any  improvement  or  progress  in  the  law  from 
age  to  age.  I  only  describe  the  general  attitude  and  tend- 
ency during  the  period  in  which  the  court  of  chancery  took 
its  rise  and  for  a  long  time  thereafter.     The  improvement 

became  difficult  to  make  new  precedents  without  interfering  with  those 
which  had  already  been  established.  Hence  (though  new  precedents  have 
ever  continued  to  be  made)  the  common  law  soon  became  to  a  great  ex- 
tent a  lex  scripta  positive  and  inflexible;  so  that  the  rule  of  justice  could 
not  accommodate  itself  to  every  case  according  to  the  exigency  of  right 
and  justice" :  1  Spence's  Eq.  Jur.,  pp.  321,  322.  The  description  of  the 
text  is  not  intended  to  apply  to  the  entire  history  of  the  common  law. 
Another  spirit  has  animated  its  judges  since  the  example  set  by  Lord 
Mansfield,  and  its  inherent  power  of  development,  when  freed  from  the 
narrow  and  obstructive  notions  of  the  earlier  judges,  has  been  fully  ex- 
hibited both  in  England  and  in  the  United  States. 


§  17  EQUITY   JURISPRUDENCE.  22 

which  an  advancing  civilization  effected  in  the  nation  itself 
was  to  a  partial  extent  reflected  in  the  law.  It  is  certain, 
however,  beyond  the  possibility  of  dispute,  that  the  English 
common  law  was  always  far  behind  the  progress  of  the 
English  people,  and  in  very  many  particulars  retained  the 
impress  of  its  primitive  barbarism  down  to  the  present 
century.  By  the  continental  jurists  contemporary  with 
Coke,  Lord  Hale,  or  Blackstone,  it  was  regarded  with  min- 
gled feelings  of  wonder  and  contempt  as  a  barbarous  code ; 
and  except  in  its  provisions  securing  the  personal  and 
political  rights  of  the  individual,  and  in  its  antagonism  to 
the  slavish  doctrine  of  the  Roman  jurisprudence.  Quod 
placuit  principi  legis  vigorem  hahet,  it  was  a  barbarous 
code.  Parliamentary  legislation  occasionally  interfered 
and  effected  a  special  reform;  and  the  principles  of  equity 
as  administered  by  the  Court  of  Chancery  reacted  to  a 
slight  degree  upon  the  law;  but  still  the  common-law  judges 
as  a  body  exhibited  the  blind  conservatism  which  I  have 
described  down  to  a  period  wholly  modern.  With  the  par- 
tial exception  of  Lord  Holt,  whose  masculine  intellect  some- 
times broke  away  from  the  trammels,^  Lord  Mansfield  was 

§  17,  1  Lord  Holt  was  never  thoroughly  emancipated  from  a  fanatical 
devotion  to  the  ancient  law,  and  sometimes  resisted  innovations  which 
even  his  inferior  associates  on  the  bench  could  see  were  demanded  by 
the  necessities  of  society  and  of  business.  A  remarkable  instance  may  be 
seen  in  his  refusal  to  adopt  the  customs  of  merchants  in  regard  to  promis- 
sory notes,  a  refusal  which  compelled  Parliament  to  interfere  by  statute 
and  place  these  contracts  upon  the  same  basis  as  inland  bills  of  exchange. 
On  the  other  hand,  his  celebrated  opinion  in  Coggs  v.  Bernard  was  an 
unprecedented  departure  from  the  ordinary  modes  of  the  court,  and 
opened  the  way  for  subsequent  judges  to  follow  into  the  rich  mines  of 
the  Roman  jurisprudence.  And  his  no  less  celebrated  judgment  in  Ashby 
V.  White  exhibited,  more  clearly  than  has  perhaps  been  done  by  any 
other  judge,  the  unlimited  power  of  development  inherent  in  the  common 
law  where  its  essential  principles  are  freely  carried  out  and  its  bondage 
to  form  and  established  precedent  is  broken.  Among  the  recent  English 
judges  who  have  represented  the  ancient  rather  than  the  modern  ten- 
dencies of  the  law,  and  who  have  exalted  its  rules  of  form,  Baron  Parke  ■ 
stands   the    foremost,    and    has    actually   obtained    the    reputation    of    a 


23  OBIGIN    OF    EQUITY    JURISPRUDENCE.  §  18 

the  first  great  English  judge  who  consciously,  and  with  sys- 
tematic and  persistent  purpose,  adopted  the  policy  of  the 
Eoman  praetors,  endeavored  to  impart  a  new  life  and  give 
a  new  direction  to  the  growth  of  the  common  law,  and  by 
means  of  equitable  principles  in  combination  with  its  own 
methods  to  reform  the  law  from  within.  As  a  reward  for 
these  innovations.  Lord  Mansfield  was  charged  in  his  own 
day — and  the  accusation  has  been  handed  down  as  a  part 
of  judicial  history — with  ignorance  of  the  English  law. 
Although  the  work  which  Lord  Mansfield  began  was  inter- 
rupted by  his  narrow-minded  successor.  Lord  Kenyon,  it 
has  been  taken  up  and  carried  on  in  the  same  spirit  by 
many  of  the  able  judges  who  have  adorned  the  English 
bench  within  the  present  century,  and  by  the  state  and 
national  courts  of  this  country,  until  the  common  law  has 
now  become  a  truly  scientific  and  philosophical  code. 

§  18.  A  second  cause  which  prevented  a  development  of 
the  national  jurisprudence  in  harmony  with  and  by  the  aid 
of  the  equitable  notions  contained  in  the  Roman  codes,  and 
which  therefore  tended  to  the  creation  of  a  separate  court 
of  chancery,  was  the  fact  that  the  rules  concerning  real 
property  and,  to  a  considerable  extent,  those  concerning 
personal  status  and  relations,  were  feudal  in  their  origin 
and  nature.  From  whatever  source  the  ultimate  notion  of 
feudal  tenure  was  derived,  whether  from  the  Roman  em- 
phyteusis or  from  German  tribal  customs,  it  is  certain  that 
there  was  nothing  in  common  between  the  institutions  of 
feudalism  as  they  existed  under  the  Norman  kings,  and  the 
doctrines  of  the  Roman  law.  As  long,  therefore,  as  these 
institutions  continued  to  flourish  there  was  of  necessity  a 

jurist,  because  he  was  able  to  discuss  and  state  these  arbitrary  dogmas 
in  a  scientific  manner,  and  to  clothe  them  with  some  appearance  of  a 
philosoi^hie  system.  But  in  no  series  of  English  reports  are  the  rights 
of  suitors  made  to  depend  upon  a  compliance  with  mere  forms,  and  the 
decisions  made  to  turn  upon  mere  technicalities,  more  than  in  the  volumes 
of  Meesou  and  Welsby. 


§§19,20  EQUITY    JUEISPRUDENCE.  24 

large  and  most  important  part  of  the  English  law  which 
could  receive  no  accession  or  improvement  from  doctrines 
of  the  Roman  jurisprudence;  no  combination  of  the  two 
w^as  possible.  Roman  principles  were  subsequently  intro- 
duced by  the  Court  of  Chancery  in  its  enforcement  of  uses 
as  a  special  kind  of  property  in  lands ;  but  there  was  even 
then  no  combination.  Feudal  dogmas  were  maintained  by 
the  courts  of  law,  and  Roman  notions  by  the  court  of 
equity;  and  the  two  systems  ran  on,  confronting  and  even 
hostile  to  each  other,  until  the  Parliament  interposed  in  the 
reign  of  Henry  VIII.,  and  by  the  celebrated  Statute  of  Uses 
effected  a  partial  union. 

§  19.  Although  the  feudal  institutions  in  their  integrity 
were  undoubtedly  an  obstacle  to  the  introduction  of  Roman 
law  principles,  and  the  development  of  one  homogeneous 
jurisprudence  for  the  English  people,  still  the  obstacle  was 
not  insuperable.  The  same  institutions  existed  on  the  con- 
tinent, and  in  Germany,  especially,  they  have  largely  modi- 
fied the  law  down  to  the  time  when  the  present  system  of 
codes  was  adopted.  Notwithstanding  this  fact,  the  Roman 
law  has  entered  as  the  principal  element  into  the  juris- 
prudence of  every  western  continental  nation,  and  through 
it  the  doctrines  of  equity  have  been  everywhere  accepted, 
not  as  constituting  a  separate  department,  but  as  pervading 
and  influencing  the  whole. 

§  20.  The  third  cause  which  I  shall  mention,  and  it  was 
an  exceedingly  important  one  in  its  effects  upon  the  juris- 
diction of  chancery,  which  had  already  become  quite  exten- 
sive, arose  from  the  position  and  policy  of  the  kings,  the 
Parliament,  and  the  nation  towards  the  church  of  Rome. 
The  English  kings  had  maintained  a  long  and  bitter 
struggle  with  the  Pope  and  his  emissaries  among  the  higher 
ecclesiastics  to  maintain  the  independence  of  the  crown  and 
of  the  Anglican  branch  of  the  church.  In  the  reign  of 
Edward  III.,  the  exactions  of  the  Papal  See  became  pecu- 
liarly hateful  to  the  King  and  to  the  nation.     Having  the 


25  ORIGIN    OF    EQUITY    JURISPRUDENCE.  §  20 

support  of  his  Parliament,  Edward  refused  payment  of  the 
tribute  which  had  been  demanded  by  the  Pope,  and  meas- 
ures were  taken  to  prevent  any  further  encroachments. 
A  general  hostility,  or  at  least  a  sentiment  of  opposition, 
to  the  Papal  court  and  to  everything  connected  with  it  had 
sprung  up  and  spread  among  all  ranks  of  the  laity.  The 
Eoman  law  fell  under  this  common  aversion.  Partly  from 
its  name,  partly  because  it  was  supported  by  the  Papal  See, 
both  on  account  of  its  connection  with  the  canon  law,  and 
on  account  of  its  doctrines  favorable  to  absolutism,  and 
partly  because  a  knowledge  of  it  prevailed  most  extensively 
among  the  ecclesiastics,  so  that  it  was  popularl}^  regarded 
as  an  instrument  of  the  church,  the  Roman  law,  which  had 
been  treated  with  favor  by  Henry  II.,  Henry  III.,  and  Ed- 
ward I.,  and  by  the  judges  themselves  in  former  reigns, 
became  an  object  of  general  dislike,  and  even  antipathy. 
In  the  reign  of  Henry  III.  the  barons  formally  declared 
that  they  would  not  suffer  the  kingdom  to  be  governed  by 
the  Roman  law ;  ^  and  the  common-law  judges  prohibited  it 
from  being  any  longer  cited  in  their  courts.  This  action 
of  the  barons  and  judges  was  certainly  a  mistake,  and  it 
produced  an  opposite  effect  from  the  one  intended.  The 
Roman  law,  instead  of  being  banished,  was  simply  trans- 
ferred to  another  court,  which  was  not  governed  by  com- 
mon-law doctrines.  As  the  law  courts  intentionally  cut 
themselves  off  from  all  opportunity  of  borrowing  equitable 
principles  from  this  foreign  source,  the  necessity  arose  for 
a  separate  tribunal,  in  which  those  principles  could  be 

§  20,  1  "Quod  noluerunt  leges  Angliaj  mutare,  quae  usque  ad  illud  tem- 
pus  usitatae  fuerunt  et  approbatce."  The  occasion  upon  which  this 
memorable  declaration  was  made,  at  the  Parliament  of  Merton,  A.  D. 
1236,  was  the  attempt  of  the  ecclesiastics  to  introduce  the  doctrine  that 
illegitimate  children  are  made  legitimate  by  the  subsequent  marriage  of 
their  parents.  This  doctrine  was  peculiarly  distasteful  to  the  English 
barons,  since  it  interfered  Avith  the  feudal  rules  of  inheritance.  For  a 
full  account  of  the  controversy  in  all  its  stages,  see  Bracton  and  his 
relations  with  the  Roman  Law,  p.  129.  Blackstone  states  the  time  and 
place  to  have  been  the  Parliament  of  Tewksbuiy,  A.  D.  1234. 


§  20  EQUITY    JURISPRUDENCE.  26 

recognized.  It  therefore  followed,  immediately  upon  this 
prohibition,  that  the  hitherto  narrow  jurisdiction  of  the 
Court  of  Chancery  was  greatly  increased,  and  extended 
over  subject-matters  which  required  an  ample  and  constant 
use  of  Roman  law  doctrines.  To  the  same  cause  was  chiefly 
due  the  selection,  which  was  really  a  necessity,  of  chancel- 
lors from  among  the  ecclesiastics,  during  the  period  while 
the  jurisdiction  of  the  court  was  thus  enlarged  and 
established. 2 

§  20,  2  In  confirmation  of  the  text,  I  quote  the  following  passages 
from  Mr.  Spence.  Speaking  of  the  prohibition  by  the  common -law 
judges  mentioned  in  the  text,  he  says:  "Perhaps  one  object  of  the  judges 
might  have  been  to  exclude  the  doctrine  as  to  fidei-commissa,  or  trusts, 
which  first  came  distinctly  into  notice  during  this  reign  (Richard  II.). 
The  effect,  however,  of  the  exclusion  of  the  Roman  law  from  the  com- 
mon-law tribunals  was  that  a  distinct  code  of  laws  was  formed  and 
administered  in  the  Court  of  Chancery,  by  which  the  enjoyment  and 
alienation  of  property  were  regulated  on  principles  varying  in  many 
essential  particulars  from  the  system  which  those  who  originated  and 
carried  into  effect  the  exclusion  of  the  Roman  law  were  so  anxious  to 
preserve.  Nor  were  these  united  endeavors  for  the  exclusion  of  the 
Roman  law  less  important  in  fixing  the  appointment  of  the  office  of 
Chancellor  in  the  members  of  the  clerical  body.  Notwithstanding  all  the 
efforts  that  were  made  to  repress  them,  trusts  soon  became  general.  Some 
rules  for  their  regulation  were  absolutely  necessary.  It  was  from  the 
Roman  law  they  had  sprung  up;  who  so  proper  to  introduce  and  system- 
atize the  rules  necessary  for  their  regulation  as  those  who  were  now  ex- 
clusively conversant  with  this  law,  and  who  alone,  as  it  was  excluded 
from  the  common-law  courts,  could  resort  to  it  for  their  guidance?  Ac- 
cordingly, from  this  time,  with  some  exceptions,  none  but  clerical  chan- 
cellors were  appointed,  down  to  the  twenty-first  year  of  Henry  VIII.  It 
may  be  well  doubted  whether  but  for  the  last  circumstance  the  system 
of  equitable  jurisprudence  which  we  find  established  in  the  reign  of 
Henry  VIII.,  on  which  the  doctrine  of  uses  and  much  of  the  modem 
jurisdiction  of  the  court  is  founded,  would  then  have  existed.  The  antip- 
athy to  the  Roman  law  which  in  the  reign  of  Elizabeth  was  extended,  as 
regards  a  considerable  portion  of  the  community,  to  everything  Roman, 
and  the  intensity  of  which  has  scarcely  yet  subsided,  broke  forth  in  the 
latter  end  of  the  reign  of  Elizabeth,  and  in  that  of  James  I.,  in  a  way 
that  leaves  little  doubt  as  to  what  would  have  become  of  the  equitable 
principles  of  the  Court  of  Chancery,  if  that  court  in  its  infancy  had  been 
permanently  committed  to  common-law  judges  as  chancellors.     I  cannot 


27  ORIGIN    OF    EQUITY    JUKISPEUDENCB.  §  21 

§  21.  The  Earliest  Common-law  Actions  and  Procedure. 
The  last  cause  which  I  shall  mention,  and  practically  the 
most  immediate  and  efficient  one  in  its  operation  fo  prevent 
any  expansion  of  the  common  law,  so  as  to  obviate  the 
necessity  of  a  separate  equitable  jurisdiction,  was  the  pecu- 
liar procedure  which  was  established  by  the  courts  at  a 
very  early  day,  and  to  which  they  clung  with  a  surprising 
tenacity.  This  procedure  furnished  a  fixed  number  of 
**forms  of  action."  Every  remedial  right  must  be  en- 
forced through  one  of  these  forms;  and  if  the  facts  of  a 
particular  case  were  such  that  neither  of  them  was  appro- 
priate, the  injured  party  was  without  any  ordinary  legal 
remedy,  and  his  only  mode  of  redress  was  by  an  application 
made  directly  to  the  King.     The  initial  step  in  every  action 

but  here  notice,  as  some  confirmation  of  the  conjecture  which  is  hazarded 
above,  that  a  writer  of  the  reign  of  James  I.,  who,  if  not,  as  he  styles 
himself,  a  sergeant,  was  evidently  speaking  the  sentiments  of  that  order, 
says :  'The  common  law  commandeth  all  that  is  good  to  be  done' ;  'The  suit 
by  subpoena  is  against  the  common  weal  of  the  realm.'  The  whole  of  the 
system  which  fonnerly  prevailed  in  the  Court  of  Chancery  as  to  uses, 
and  which  was  then  applied  to  trusts,  is  also  denounced  by  him  in  terms 
which  show  that  under  chancellors  taken  from  the  professors  of  the 
common  law  merely,  the  modern  system  of  equitable  jurisprudence  would 
never  have  been  reared,  at  least  in  the  Court  of  Chancery.  One  of  his 
complaints  is,  that  relief  was  given  where  the  amount  secured  by  a  bond 
or  recognizance  had  been  paid,  and  no  release  obtained."  (It  was  one  of 
the  absurd  doctrines  of  the  old  common  law,  that  a  sealed  instrument 
could  only  be  discharged  by  another  instrument  of  as  high  a  character. 
If  the  debtor  on  a  bond  paid  the  full  amount,  and  failed  to  obtain  an 
acquittance  under  seal,  or  a  surrender  up  of  the  instrument,  even  though 
he  took  a  written  receipt  in  full,  he  was  still  liable,  and  could  have  no 
defense  to  an  action  on  the  bond !  One  of  the  first  measures  of  equity 
was  to  overthrow  this  iniquitous  rule  by  enjoining  the  action  at  law 
brought  under  such  circumstances  against  the  debtor,  and  it  is  of  this 
interference  that  the  writer  in  question  bitterly  complains.  He  says:) 
"When  a  bill  has  been  made  to  the  Chancellor  that  such  a  man  should 
have  great  wrong  to  be  compelled  to  pay  two  times  for  one  thing,  the 
Chancellor,  not  knowing  the  goodness  of  the  common  law  ( !),  has  timor- 
ously directed  a  subpoena  to  the  plaintiff  (in  the  action  at  law)  ;  and  the 
Chancellor,  regarding  no  law,  but  trusting  to  his  own  wit  and  wisdom, 
giveth  judgment  as  it  pleaseth  him" :  1  Spence's  Eq.  Jur.,  p.  347. 


§  21  EQUITY   JURISPRUDENCE.  28 

was  a  written  document  issued  in  the  name  of  the  King, 
called  a  writ,  which  was  both  the  commencement  and  the 
foundation  of  all  subsequent  proceedings.  This  document 
gave  a  brief  summary  of  the  facts  upon  which  the  right  of 
action  was  based,  and  contained  certain  technical  formulas 
indicating  what  form  of  action  was  brought  and  what 
remedy  was  demanded.  If  it  had  been  possible  for  suitors 
or  the  officers  of  the  court  to  multiply  these  writs  indefi- 
nitely, so  as  to  meet  all  possible  circumstances  and  social 
relations,  there  would  have  been  no  difficulty,  and  the  proce- 
dure could  have  been  expanded  so  as  to  embrace  every 
variety  of  wrong  and  every  species  of  remedial  right  which 
might  subsequently  arise  in  the  course  of  the  national  de- 
velopment. But  there  was  absolutely  no  such  possibility, 
and  herein  was  the  essential  vice  of  the  system.  The  nature 
of  these  writs  was  fixed,  and  could  not  be  substantially 
changed.  A  writ  had  been  settled,  not  only  for  each  of  the 
different  ''forms  of  action,"  but  for  the  facts,  circum- 
stances, and  events  which  could  constitute  the  subject- 
matter  of  the  particular  actions  embraced  within  each  one 
of  these  several  "forms  of  action."  The  precedents  of  all 
the  writs  which  had  been  thus  established  were  kept  in  an 
office  connected  with  the  chancery,  called  the  Registra  Bre- 
vium.  Certain  officers  of  the  chancery  were  charged  with 
the  duty  of  issuing  the  writs  to  plaintiffs,  and  this  they  did 
by  selecting  and  copying  the  one  which  agreed  with  the 
facts  of  the  applicant's  case.  If  no  writ  could  be  found  in 
the  collection  which  substantially  corresponded  with  the 
facts  constituting  the  ground  of  complaint,  then  the  plain- 
tiff could  have  no  action.  The  chancery  clerks  could  not 
draw  up  entirely  new  writs,  nor  alter  the  existing  ones  in 
any  substantial  manner;  it  is  probable,  however,  that  they 
assumed  to  make  some  slight  changes,  so  as  to  accommo- 
date the  recitals  to  the  facts  of  special  cases,  but  this  power 
could  only  be  exercised  within  the  narrowest  limits.  There 
were,  however,  certain  kinds  of  facts  connected  with  every 
cause  of  action,  which  might  be  varied.     The  statements  in 


29  ORIGIN    OF    EQUITY    JURISPRUDENCE.  §  22 

the  writs  were  somewhat  general  in  their  terms,  some  ap- 
plying to  land,  some  to  chattels,  others  to  persons,  debts, 
torts ;  and,  of  course,  the  particulars  of  quantity,  size,  value, 
time,  place,  amount  of  damage,  and  the  like,  were  not  mate- 
rial, and  could  be  varied  without  limit.  One  other  fact  of 
the  utmost  importance  remains  to  be  mentioned.  Although 
the  chancery  clerks  decided  in  the  first  place  upon  the  form 
and  kind  of  writ  in  every  case,  and  thus  determined  the 
species  of  action  to  be  brought,  this  decision  did  not  in 
the  least  protect  or  secure  the  plaintiff  after  he  had  com- 
menced his  action.  When  the  action  came  before  the  com- 
mon-law courts,  the  judges  assumed  and  constantly  exer- 
cised the  power  of  determining  the  sufficiency  of  the  writ; 
and  if  they  held  that  it  was  not  the  proper  one  for  the  case, 
or  that  its  recitals  of  facts  or  formulas  were  imperfect  or 
mistaken,  no  attention  was  given  to  the  prior  decision  of 
the  chancery  officials,  the  writ  and  action  were  dismissed, 
and  the  plaintiff  thrown  out  of  court. 

§  22.  The  ancient  actions  of  the  common  law,  prior  to 
the  statutory  legislation  hereafter  mentioned,  as  described 
by  Bracton,  were  of  two  general  classes :  1.  Those  which 
concerned  lands  and  all  estates  or  interests  therein;  and 
2.  Those  which  concerned  persons,  chattels,  contracts,  and 
torts.  The  former  class,  the  Real  Actions,  included  a  con- 
siderable number  of  particular  actions,  adapted  to  various 
estates  and  rights,  some  for  determining  the  title,  others 
for  the  recovery  of  possession  merely;  and  were  all  techni- 
cal and  arbitrary  in  their  modes  of  procedure.  The  action 
of  ejectment  by  which  they  were  superseded  was  a  growth 
of  later  times.  The  second  class,  the  Personal  Actions,  con- 
tained two  actions  ex  contractu,  ''Debt"  and  ''Covenant," 
and  two  ex  delicto,  "Trespass"  and  "Detinue."  "Ee- 
plevin,"  which  was  one  of  the  most  ancient  judicial  pro- 
ceedings known  to  the  English  law,  was  so  restricted  in  its 
use  to  special  circumstances  and  inferior  courts  that  it  was 
not  classified  among  the  ordinary  common-law  forms  of 


§  23  EQUITY    JUEISPRUDENCE.  30 

action.     The  functions  of  these  four  personal  actions  are 
so  well  known  that  no  description  of  them  is  necessary. 

§  23.  From  this  enumeration  it  is  plain  that  the  common 
law  furnished  a  verj-  meager  system  of  remedies,  utterly 
insufficient  for  the  needs  of  a  civilization  advancing  beyond 
the  domination  of  feudal  ideas.  The  appliances. for  main- 
taining rights  over  land  were  perhaps  sufficient  in  num- 
ber and  in  variety,  but  they  were  excessively  cumbrous, 
and  the  rights  of  suitors  were  liable  to  be  defeated  by  some 
failure  in  technical  matters  of  form.  The  lack  of  remedial 
instruments  was  chiefly  felt  in  the  class  of  personal  actions. 
No  contract  could  be  enforced  unless  it  created  a  certain 
debt,  or  unless  it  was  embodied  in  a  sealed  writing.  No 
means  was  given  for  the  legal  redress  of  a  wrong  to 
person  or  property,  unless  the  tortious  act  was  accom- 
panied with  violence,  express  or  implied.  The  injuries  and 
breaches  of  contract  which  now  form  the  subject-matter  of 
so  much  litigation  were  absolutely  without  any  legal  rem- 
edy. It  is  true,  the  ancient  records  show  a  few  instances 
in  which  the  action  of  trespass  was  extended  to  torts  with- 
out violence,  such  as  defamation,  but  these  cases  were 
exceptional  and  governed  by  no  legal  rule.  The  chief  de- 
fect, however,  of  the  legal  procedure,  which  rendered  it 
incomplete  as  a  means  of  administering  justice,  and  wholly 
insufficient  for  the  needs  of  a  people  whose  social  relations 
were  constantly  growing  more  complex,  consisted  in  its  in- 
ability to  adapt  its  actual  reliefs  to  the  varying  rights  and 
duties  of  litigants.  Whatever  might  be  the  form  of  action 
used,  the  remedy  conferred  by  its  judgment  was  either  a 
recovery  of  the  possession  of  land,  a  recovery  of  the  pos- 
session of  chattels,  or  a  recovery  of  money.  Although 
these  simple  species  of  relief  might  be  suited  to  a  primitive 
society,  the  necessity  of  other  and  more  specific  forms, 
adapted  to  various  circumstances  and  relations,  was  felt 
as  soon  as  the  progress  of  the  nation  towards  a  higher 
civilization  had  fairly  begun.     From  the  causes  which  I 


31  ORIGIN    OF    EQUITY    JURISPRUDENCE.  §§24,25 

have  thus  brie%  described,  the  common-law  courts  were 
closed  against  a  large  and  steadily  increasing  class  of 
rights  and  remedies,  and  a  distinct  tribunal,  with  a  broader 
and  more  equitable  jurisdiction  and  mode  of  i^rocedure, 
became  an  absolute  necessity,  or  else  justice  would  be 
denied. 

§  24.  Statute  of  Edward  I.  Concerning  New  Writs. — Par- 
liament at  length  interposed  with  a  reformatory  measure 
which  was  intended  to  be  radical,  and  which  perhaps  might 
have  checked  the  growing  jurisdiction  of  chancery  if  the 
common-law  judges  had  treated  the  statute  in  the  same 
liberal  spirit  with  which  it  was  enacted.  As  all  writs  for 
the  commencement  of  actions  were  drawn  up  by  the  clerks 
in  chancery,  the  legislature  attempted  to  remove  all  the 
existing  difficulties  by  enlarging  the  powers  of  these  offi- 
cials, and  conferring  upon  them  a  wide  discretion  in  the 
invention  of  new  forms  of  writs,  suitable  to  new  condi- 
tions of  fact,  and  providing  for  remedial  rights  hitherto 
without  any  means  of"  enforcement.  In  the  reign  of  Ed- 
ward I.  the  following  statute  was  passed:  ^  ''Whensoever 
from  henceforth  it  shall  fortune  in  chancery  that  in  one 
case  a  writ  is  found,  and  in  a  like  case  falling  under  like 
law  and  requiring  like  remedy  is  found  none,  the  clerks  of 
the  chancery  shall  agree  in  making  the  writ,  or  the  plain- 
tiff may  adjourn  it  into  the  next  Parliament,  and  let  the 
cases  be  written  in  which  they  cannot  agree,  and  let  them 
refer  themselves  to  the  next  Parliament,  and  by  consent 
of  men  learned  in  the  law  a  writ  shall  be  made,  lest  it  should 
liappen  after  that  the  court  should  long  time  fail  to  minister 
justice  unto  complainants." 

§  25.  Limited  Results  of  This  Legislation. — The  general 
intent  of  this  enactment  is  perfectly  clear,  and  it  should 
have  been  liberally  and  largely  construed  in  accordance 
with  that  intent.     The  common-law  judges,  however,  ap- 

§  24,  1 13  Edw.  I.,  chap.  1,  §  24. 


§  26  EQUITY   JURISPRUDENCE.  32 

plied  to  it  a  strict  and  narrow  construction,  a  literal  and 
verbal  interpretation,  wholly  foreign  to  its  design  and 
meaning.  Although  by  its  means  the  new  common-law 
forms  of  action  known  as  ''Case,"  ''Trover,"  and  "As- 
sumpsit" were  invented,  which  in  later  times  have  been 
the  most  potent  instruments  for  the  development  and  im- 
provement of  the  common  law  itself,^  yet  so  far  as  the 
legislature  proposed  to  enlarge  the  scope  of  the  law  by 
the  introduction  of  equitable  principles  and  remedies,  and 
thereby  to  stop  the  growth  of  the  equitable  jurisdiction  of 
chancery,  that  purpose  was  wholly  frustrated  by  the  action 
of  the  law  judges  in  construing  and  enforcing  the  statute. 
The  main  points  in  which  this  restrictive  interpretation  was 
made  effective,  so  as  to  defeat  the  ultimate  object  of  the 
statute,  were  the  following: — 

§  26.  1.  The  act  permitted  the  framing  of  new  writs  in 
cases  "falling  under  like  law  and  requiring  like  remedy" 
with  the  existing  ones.  Upon  this  permissive  language  the 
courts  put  a  highly  restrictive  meaning.  As  the  common- 
law  forms  of  action  gave  only  three  different  kinds  of  reme- 
dies, every  remedy  obtained  through  the  means  of  the  new 
writs  must  be  like  one  of  these  three  species.  Thus  at  one 
blow  all  power  was  denied  of  awarding  to  suitors  any  spe- 
cial equitable  relief  which  did  not  fall  within  one  or  the 
other  of  these  three  classes,  and  parties  who  required  such 
special  forms  of  remedy  were  still  compelled  to  seek  them 
from  another  tribunal.  The  same  was  true,  irrespective  of 
the  particular  kinds  of  relief,  of  all  cases  which  might  arise, 
quite  dissimilar  in  their  facts  and  circumstances  from  those 
to  which  the  existing  forms  of  action  applied;  not  falling 
under  "like  law,"  they  were  held  to  be  without  the  scope 
of  the  statute,  and  the  complainants  could  obtain  no  redress 
from  the  common-law  courts. 

§  25,  II  have  elsewhere  described  the  manner  in  which  these  new  ac- 
tions were  invented, — one  of  the  most  interesting  events  in  the  history  of 
the  English  law.  See  Pomeroy's  Introduction  to  Municipal  Law,  §§  200- 
204. 


33  OKIGIN    OF    EQUITY    JUKISPEUDENCE.  §§  27-29 

§  27.  2.  The  statute  only  provided  for  new  writs  on  bo- 
half  of  plaintiffs.  As  civilization  progressed,  and  the  rela- 
tions of  men  g-rew  more  intricate  from  increase  of  com- 
merce, trade,  and  other  social  activities,  new  defenses  as 
well  as  new  causes  of  action  constantly  arose.  Although 
these  were  not  within  the  letter  of  the  act,  they  were  fairly 
within  its  spirit.  But  the  law  courts  adhered  to  the  letter, 
and  ignored  the  spirit.  If,  therefore,  the  new  matter  of 
defense  did  not  fall  within  the  prescribed  formulas  of  the 
legal  actions,  and  did  not  conform  to  the  established  rules 
defining  legal  defenses,  the  party  must  seek  relief  in  some 
manner  from  the  jurisdiction  of  the  chancellor.^ 

§  28.  3.  Although  the  statute  authorized  the  ' '  clerks  of 
chancery"  to  frame  the  new  writs,  and  seemed  by  implica- 
tion to  confer  upon  them  the  absolute  powers  with  respect 
to  the  matter  which,  it  was  conceded,  were  held  by  Parlia- 
ment, still  the  common-law  judges  assumed  for  themselves 
the  same  exclusive  jurisdiction  to  pass  upon  the  propriety 
and  validity  of  the  new  writs  which  they  had  always  exer- 
cised over  those  issued  by  the  clerks  prior  to  the  statute. 
They  did  not  regard  the  action  of  the  chancery  officials  in 
sanctioning  a  writ  which  would  give  a  new  remedial  right 
to  the  plaintiff  as  at  all  binding,  and  in  fact  rejected  all  the 
new  writs  contrived  in  pursuance  of  the  statute,  which  did 
not  closely  conform  to  some  one  of  the  existing  precedents. 
The  chancery  clerks,  being  ecclesiastics  and  acquainted  with 
the  Roman  law,  seem  to  have  fashioned  most  of  their  new 
writs  in  imitation  of  the  Roman  formulm;  but  all  these 
innovations  upon  the  established  methods  the  law  courts 
refused  to  accept. 

§  29.  This  legislation,  however,  produced  in  the  course 
of  time  the  most  beneficial  effects  upon  the  development 

§  27,  1  This  jurisdiction,  to  be  effective,  would  generally  be  exercised 
by  means  of  enjoining  the  legal  action  brought  against  the  party  apply- 
ing to  the  chancellor,  and  in  which  his  attempted  defense  had  been 
rejected. 

1—3 


§  29  EQUITY    JURISPRUDENCE.  34 

of  the  common  law  itself,  independently  of  the  chancery 
jurisdiction.  Upon  the  basis  of  certain  new  writs  con- 
trived by  the  chancery  clerks  and  adopted  by  the  law 
judges,  three  additional  legal  actions  were  invented,  "Tres- 
pass on  the  Case,"  and  its  branches  or  offshoots,  "Trover," 
and  "Assumpsit,"  which  have  been  the  most  efficient  and 
useful  of  all  the  forms  of  legal  actions  in  promoting  the 
growth  of  an  enlightened  national  jurisprudence.  With- 
out the  action  of  ' '  Case ' '  applicable  to  an  unlimited  variety 
of  wrongs,  and  affording  an  opportunity  for  enforcing  the 
maxim,  Ubi  jus  ihi  remedium,  and  the  action  of  "Assump- 
sit," by  which  the  multiform  contracts  growing  out  of 
trade  and  commerce  could  be  judicially  enforced,  it  is  safe 
to  say  that  the  common  law  of  England  would  have  re- 
mained stationary  in  the  condition  which  it  had  reached 
at  a  time  not  later  than  the  reign  of  Edward  III.  These 
two  actions  resembled  the  actiones  bonce  fidei  of  the  Roman 
law,  in  admitting  motives  of  natural  right  and  justice  for 
the  decision  of  causes,  instead  of  purely  technical  and  arbi- 
trary rules  of  form.  When  at  a  still  later  day  the  prin- 
ciples of  equity  began  to  react  upon  the  law,  and  the 
common-law  judges  freely  applied  these  equitable  doctrines 
in  adjudicating  upon  legal  rights,  it  was  chiefly  through 
these  actions  of  Case  and  Assumpsit  that  the  work  of  re- 
forming and  reconstructing  the  common  law  was  accom- 
plished. The  actions  of  Trespass,  Covenant,  and  Debt 
have  remained,  even  to  the  present  day,  technical  in  their 
modes  and  arbitrary  in  their  rules;  but  the  actions  of 
Case,  Trover,  and  Assumpsit  have  been  free  from  for- 
mal restraints,  flexible  in  their  adaptability,  capable  of 
being  administered  in  conformity  with  equitable  doctrines. 
Through  their  means,  many  of  the  rules  which  were  origi- 
nally established  by  the  Chancellor  have  been  incorporated 
into  the  law,  and  are  now  mere  legal  commonplaces. i 

§  29,  1  For  au  account  of  the  origin  and  progress  of  these  actions,  see 
1  Spence's  Eq.  Jur.,  pp.  237-254;  Pomeroy's.  lutroduetion  to  Municipal 
Law,  §§  200-204. 


35  ORIGIN    OF    EQUITY    JURISPRUDENCE.  §§30,31 

§  30.  Commencement  and  Progress  of  the  Chancery  Ju- 
risdiction.— I  have  thus  far  described  the  causes  existing 
in  the  early  condition  of  the  common  law,  and  in  the 
attitude  of  the  law  courts,  which  rendered  necessary  a 
separate  tribunal  with  an  equitable  jurisdiction,  and  a 
procedure  capable  of  being  adapted  to  a  variety  of  cir- 
cumstances, and  of  awarding  a  variety  of  special  remedies. 
I  now  proceed  to  state  the  origin  of  this  tribunal,  and  the 
principal  events  connected  with  the  establishment  of  its 
jurisdiction. 

§  31.  Original  Powers  of  the  King's  Council. — Under 
the  early  Norman  kings,  the  Crown  was  aided  by  a  Coun- 
cil of  Barons  and  high  ecclesiastics,  which  consisted  of 
two  branches, — the  General  Council,  was  was  occasionally 
called  together,  and  was  the  historical  predecessor  of  the 
Parliament,  and  a  Special  Council,  very  much  smaller  in 
number,  which  was  in  constant  attendance  upon  the  King, 
and  was  the  original  of  the  present  Privy  Council.  It  was 
composed  of  certain  high  officials,  as  the  Chancellor,  the 
Treasurer,  the  Chief  Justiciary,  and  other  members  named 
by  the  King.  This  Special  Council  aided  the  Crown  in  the 
exercise  of  its  prerogative,  which,  as  has  been  stated,  em- 
braced a  judicial  function  over  matters  that  did  not  or 
could  not  come  within  the  jurisdiction  of  the  ordinary 
courts.  The  extent  of  this  judicial  prerogative  of  the 
King  was,  from  its  nature  and  from  the  unsettled  condi- 
tion of  the  countr}^,  very  ill  defined.  It  appears  from  an 
ancient  writer  that  in  the  time  of  Heniy  I.  the  Select 
Council  generally  took  cognizance  of  those  causes  which 
the  ordinary  judges  were  incapable  of  determining. 
From  later  records  it  appears  that  the  council  acted  on 
all  applications  to  obtain  redress  for  injuries  and  acts  of 
oppression,  wherever,  from  the  heinousness  of  the  offense, 
or  the  rank  and  power  of  the  offender,  or  any  other  cause, 
it  was  probable  that  a  fair  trial  in  the  ordinary  courts 
would  be  impeded,  and  also  wherever,  by  force  and  vio- 


§  32  EQUITY    JURISPRUDENCE.  36 

leiice,  the  regular  administration  of  justice  was  hindered. 
The  council  also  seems  to  have  had  a  jurisdiction  in  cases 
of  fraud,  deceit,  and  dishonesty,  which  were  beyond  the 
reach  of  common-law  methods.  It  is  evident,  however, 
that  this  extraordinary^  jurisdiction  of  the  King  and  coun- 
cil was  not  always  exercised  without  opposition,  especially 
when  the  matters  in  controversy  fell  within  the  authority 
of  the  common-law  courts. 

§  32.  Original  Common-law  Jurisdiction  of  the  Chan- 
cellor.— Side  by  side  with  this  extraordinary  or  preroga- 
tive judicial  function  exercised  by  the  King,  or  by  the 
Select  Council  m  his  name  and  stead,  there  grew  up  a 
jurisdiction  of  the  Chancellor.  This  is  not  the  place  to 
detail  the  numerous  special  powers  of  that  officer,  for  we 
are  only  concerned  with  those  which  were  judicial.  It  is 
certain  that  the  Chancellor  possessed  and  exercised  an  im- 
portant ordinary — that  is,  common-law — jurisdiction,  simi- 
lar to  that  held  by  the  common-law  courts,  and  wholly 
independent  of  the  extraordinary  prerogative  jurisdic- 
tion originally  possessed  by  the  King  and  council,  and 
afterwards  delegated  to  the  Chancellor  himself.  The 
proceedings  in  causes  arising  before  the  Chancellor,  under 
this,  his  ordinary  jurisdiction,  were  commenced  by  com- 
mon-law process,  and  not  by  bill  or  petition;  he  could  not 
summon  a  jury,  but  issues  of  fact  in  these  proceedings 
were  sent  for  trial  before  the  King's  Bench.  When  this 
ordinary  common-law  jurisdiction  of  the  Chancellor  com- 
menced is  not  known  with  certainty;  it  had  risen  in  the 
reign  of  Edward  III.  to  be  extensive  and  important,  and 
it  had  probably  existed  through  several  reigns. i^ 

§  32,  1  Many  of  the  cases  appearing  by  the  earliest  records  to  have 
been  decided  by  the  Chancellor,  and  which  have  been  regarded  h\  some 
writers  as  showing  that  his  equitable  powers  were  then  ill  defined,  and 
included  matters  of  purely  legal  cognizance,  should  undoubtedly  be  re- 

§32,  (a)  This  paragraph  is  cited  Aliceville  Lumber  Co.  (Ala.),  74 
in    Alabama,    T.    &    N.    Ey.    Co.    v.       South.  441. 


37  ORIGIN    OF    EQUITY    JURISPEUDENCE.  §§33,34 

§  33.  Jurisdiction  of  Grace  Transferred  to  the  Chan- 
cellor.— In  addition  to  this  ordinary  function  as  a  com- 
mon-law judge,  the  Chancellor  began  at  an  early  day  to 
exercise  the  extraordinary  jurisdiction — that  of  Grace — 
by  delegation  either  from  the  King  or  from  the  Select 
Council.  The  commencement  of  this  practice  cannot  be 
fixed  with  any  precision.  It  is  probable  that  the  judicial 
power  of  the  Chancellor  as  a  law  judge,  and  his  conse- 
quent familiarity  with  the  laws  of  the  realm,  and  expe- 
rience in  adjudicating,  were  the  reasons  why,  when  any 
case  came  before  the  King  which  appealed  to  his  judicial 
prerogative,  and  which  for  any  cause  could  not  be  prop- 
erly examined  by  the  council,  such  case  was  naturally 
referred  either  by  the  Crown  or  by  the  council  to  the 
Chancellor  for  his  sole  decision.  Wliatever  may  have 
been  the  motives,  it  is  certain  that  the  Chancellor's  ex- 
traordinary equitable  jurisdiction  commenced  in  this 
manner.  At  first  it  was  a  tentative  proceeding,  governed 
by  no  rule,  the  reference  being  sometimes  to  the  Chan- 
cellor alone,  sometimes  to  him  in  connection  with  another 
official,  and  even  occasionally  to  another  official  without 
the  Chancellor.  In  the  reign  of  Edward  I.,  such  refer- 
ences of  cases  coming  before  the  King  and  council  to  the 
Chancellor,  either  alone  or  in  connection  with  others,  were 
very  common,  although  the  practice  of  selecting  him  alone 
had  not  yet  become  fixed. 

§  34.  The  practice  of  delegating  the  cases  which  came 
before  the  prerogative  judicial  function  of  the  Crown  and 
its  council  to  the  Chancellor,  for  his  sole  decision,  having 
once  commenced,  it  rapidly  grew,  until  it  became  the  com- 
mon mode  of  dealing  with  such  controversies.  The  fact 
that  the  attention  of  the  King  and  of  his  high  officials  was 
constantly    engaged    in    matters    of  state    administration 

ferred  to  this  his  common-law,  and  not  to  his  equitable,  jurisdiction.  He 
was,  in  fact,  during  this  early  period,  and  before  the  equitable  jurisdiction 
became  established,  a  common-laiv  judge. 


§  35  EQUITY    JUEISPKUDENCE.  3b 

rendered  this  method  natural  and  even  necessary.  In  the 
reign  of  Edward  III.,  the  Court  of  Chancery  was  in  full 
operation  as  the  ordinary  tribunal  for  the  decision  of 
causes  which  required  an  exercise  of  the  prerogative  juris- 
diction, and  the  granting  of  special  remedies  which  the 
common-law  courts  could  not  or  would  not  give.  Edward 
III.  established  this  jurisdiction,  which  hitherto  had  been 
merely  permissive,  upon  a  legal  and  permanent  founda- 
tion. In  the  twenty-second  year  of  his  reign,  by  a  general 
writ,  he  ordered  that  all  such  matters  as  were  of  Grace 
should  be  referred  to  and  dispatched  by  the  Chancellor,  or 
by  the  Keeper  of  the  Privy  Seal.  The  Court  of  Chancery, 
as  a  regular  tribunal  for  the  administering  of  equitable 
relief  and  extraordinary  remedies,  is  usually  spoken  of  as 
dating  from  this  decree  of  King  Edward  III. ;  but  it  is 
certain  that  the  royal  action  was  merely  confirmatory  of 
a  process  which  had  gone  on  through  many  preceding 
years. 

§  35.  The  delegation  made  by  this  order  of  the  King 
conferred  a  general  authority  to  give  relief  in  all  matters, 
of  what  nature  soever,  requiring  the  exercise  of  the  pre- 
rogative of  Grace.  This  authority  differed  wholly  from 
that  upon  which  the  jurisdiction  of  the  law  courts  was 
based.  These  latter  tribunals  acquired  jurisdiction  in 
each  case  which  came  before  them  by  virtue  of  a  delega- 
tion from  the  Crown,  contained  in  the  particular  writ  on 
which  the  case  was  founded,  and  a  writ  for  that  purpose 
could  only  be  issued  in  cases  provided  for  by  the  positive 
rules  of  the  common  law.  This  was  one  of  the  funda- 
mental distinctions  between  the  jurisdiction  of  the  English 
common-law  courts,  under  their  ancient  organization,  and 
that  of  the  English  Court  of  Chancery. ^     The  principles 

§  35,  1  This  distinction  has  never  existed  in  the  United  States.  The 
highest  courts  of  law  and  of  equity,  both  state  and  national,  derive  their 
jurisdiction  either  from  the  constitutions  or  from  the  statutes.  There  is 
no  such   thing  as  a  delegation  of  authority  from  the  executive  or  the 


39.  OEIGIN    OF    EQUITY    JURISPRUDENCE.  §  36 

upon  whicli  the  Chancellor  was  to  base  his  decision  in  con- 
troversies coming  within  the  extraordinary  jurisdiction 
thus  conferred  upon  him  were  Honesty,  Equity,  and  Con- 
science.2  The  usual  mode  of  instituting  suits  in  chancery 
became,  from  this  time,  that  by  bill  or  petition,  without 
any  writ  issued  on  behalf  of  the  plaintiff. 

§  36.  Development  of  the  Equitable  Jurisdiction. — 
Having  thus  shown  the  historical  origin  of  the  chancery 
as  a  court  distinct  from  the  common-law  tribunals,  I  shall 
now  describe  the  growth  of  the  equitable  jurisdiction  until 
it  became  settled  upon  the  certain  basis  of  principles  which 
has  continued  without  substantial  change  to  the  present 
time.  In  the  earliest  periods  the  jurisdiction  was  ill  de- 
fined, and  was  in  some  respects  even  much  more  extensive 
than  it  afterwards  became  when  the  relations  between  the 
equity  and  the  common-law  tribunals  were  finally  adjusted. 
This  was  chiefly  due  to  the  troublous  times,  the  distuii^ed 
condition  of  the  country,  while  violence  and  oppression 
ever^^where  prevailed,  and  the  ordinary  courts  could  give 
but  little  protection  to  the  poor  and  the  weak;  when  the 
powerful  landowners  were  constantly  invading  the  rights 
of  their  inferiors  and  overawing  the  local  magistrates.  In 
the  reign  of  Richard  II.  the  Chancellor  actually  exercised 
some  criminal  jurisdiction  to  repress  violence,  and  re- 
strain the  lawlessness  of  the  great  against  the  poor  and 
helpless.     He  also  entertained  suits  concerning  land,  for 

legislature  to  these  courts;  for  the  authority  of  the  courts  and  of  the 
other  branches  of  the  government  is  directly  derived  from  the  same 
source, — the  organic  body  politic  composing  the  state  or  the  nation. 

§  35,  2  The  following  ease  illustrates  the  kind  of  matters  brought  be- 
fore the  King  and  referred  to  the  Chancellor :  Lady  Audley,  without  join- 
ing her  husband,  sued  her  father-in-law  to  obtain  a  specific  performance 
of  certain  covenants  in  her  favor  in  the  deed  of  settlement  made  on  her 
marriage.  Nothing  could  be  more  opposed  to  common-law  doctrines. 
This  was  in  35  Edward  III.,  and  it  shows  that  two  most  important  heads 
of  equity  jurisprudence  were  then  known, — the  protection  of  the  wife's 
separate  interests,  and  specific  performance  of  contracts.  See  Sir  F.  Pal- 
grave's  History  of  the  Council,  pp.  64,  67. 


§  37  EQUITY    JURISPRUDENCE.  40 

the  recovery  of  possession  or  the  establishment  of  title, 
and  even  actions  of  trespass,  when  there  had  been  dispos- 
session with  great  violence.  ^  A  strong  opposition  nat- 
urally arose  to  these  alleged  usurpations  by  the  Chancel- 
lors; but  they  persevered  as  long  as  was  necessary,  and 
were  supported  by  the  King  and  council. 

§  37.  There  were  other  reasons,  inhering  in  the  nature 
of  its  procedure  and  extent  of  its  remedial  functions,  which 
operated  to  extend  the  authority  and  increase  the  business 
of  the  chancery  court.  It  possessed  and  exercised  the 
power,  which  belonged  to  no  common-law  court,  of  ascer- 
taining the  facts  in  contested  cases  by  an  examination  of 
the  parties  under  oath, — the  ''probing  their  consciences,'^ 
• — a  method  which  gave  it  an  enormous  advantage  in  the 
discovery  of  truth,  and  which  has  only  within  our  own 
times  been  extended  to  all  other  tribunals.  Again,  the 
Chancellor  was  able  to  grant  the  remedy  of  prevention, 
which  was  wholly  beyond  the  capacity  of  the  law  courts; 
and  he  seems  to  have  used  this  kind  of  relief  with  great 
freedom,  unrestrained  by  the  rules  which  have  since  been 
settled  with  respect  to  the  injunction.  As  the  business  of 
the  court  increased  and  became  regular  and  constant,  the 
practice  was  established  in  the  reign  of  Eichard  II.  of 
addressing  the  suitor's  bills  or  petitions  directly  to  the 
Chancellor,  and  not  to  the  King  or  his  council.  During 
the  same  reign  a  statute  was  passed  by  Parliament  for  the 
purpose  of  regulating  the  business  of  the  court  and  re- 
straining its  action,  which  enacted  that  when  persons  were 
compelled  to  appear  before  the  council  or  the  chancery  on 
suggestions  found  to  be  untrue,  the  Chancellor  should  have 
power  to  award  damages  against  the  complainant,  in  his 

§  36,  1  The  instances  of  the  kind  mentioned  in  the  text  are  probably 
all  referable  to  the  notion,  which  seems  to  have  been  entertained  by  the 
early  chancellors,  that  one  important  head  of  their  jurisdiction,  founded 
upon  the  principle  of  conscience,  was  the  protection  of  the  poor,  weak, 
helpless,  and  oppressed  against  the  rich  and  powerful.  This  early  notion 
has  left  some  traces  in  the  subsequent  equity  jurisprudence. 


4:1  OEIGIN    OF    EQUITY    JUEISPRUDENCE.  §  38 

discretion.^  This  statute  was  a  solemn  recognition  by 
Parliament  of  the  court  as  a  distinct  and  permanent  tri- 
bunal, having  a  separate  jurisdiction  and  its  own  modes 
of  procedure  and  of  granting  relief;  and  the  enactment 
was  an  important  event  in  the  legal  history  of  the  chancery. 

§  38.  In  the  reign  of  Richard  II.,  Uses  first  came  dis- 
tinctly into  notice  and  were  brought  under  judicial  cog- 
nizance. This  species  of  interest  in  land  was  utterly  un- 
known to  the  common  law,  and  foreign  to  the  feudal 
notions ;  it  was  therefore  ignored  by  the  law  courts,  and  fell 
under  the  exclusive  control  of  chancery.  As  uses  were  de- 
rived, with  much  modification,  from  the  Eoman  law,  the 
doctrines  of  that  jurisprudence  were  naturally  resorted  to 
in  deciding  controversies  respecting  them,  and  in  settling 
the  rules  for  their  government.  The  action  of  the  law 
judges  in  banishing  the  Roman  law  from  their  courts, 
which  has  already  been  described, ^  also  operated  very 
powerfully  to  throw  the  consideration  of  these  matters  into 
the  chancery,  and  greatly  augmented  and  strengthened 
its  authority.  No  one  subject  has  contributed  so  much 
to  enlarge  and  perfect  the  jurisdiction  of  the  Court  of 
Chancery  as  the  uses  thus  surrendered  to  its  exclusive  cog- 
nizance. The  principles  which  underlie  them  and  the 
trusts  which  succeeded  them  have  been  extended  to  all  de- 
partments of  equity,  and  have  been  more  efficient  than  any 
other  cause  in  building  up  an  harmonious  system  of  equi- 
table jurisprudence  in  conformity  with  right  and  justice. 
These  flexible  principles  have  been  applied  to  almost  every 
relation  of  life  atfecting  property  rights,  and  have  been 
molded  so  as  to  meet  the  exigencies  of  the  infinite  variety 
of  circumstances  which  arise  from  modern  civilization. 
They  have  even  reacted  upon  the  common  law,  and  have 
been  recognized  by  the  law  judges  in  their  settlement  of 
the  rules  which  govern  the  rights  and  obligations  grow- 
ing out  of  contract. 

§  37,  1 17  Rich.  11.,  chap.  6. 

g  38,  1  See  ante,  §  20. 


§  39  EQUITY    JURISPRUDENCE.  42 

§  39.  In  the  reigns  of  Henry  IV.  and  Henry  V.,  the  Com- 
mons, from  time  to  time,  complained  that  the  Court  of 
Chancery  was  usurping  powers  and  invading  the  domain 
of  the  common-law  judges.  It  is  a  very  remarkable  fact, 
however,  that  this  opposition  never  went  to  the  extent  of 
denouncing  the  equity  jurisdiction  as  wholly  unnecessary; 
it  was  always  conceded  that  the  law  courts  could  furnish 
no  adequate  remedy  for  certain  classes  of  wrongs,  and  that 
a  separate  tribunal  was  therefore  necessary.  As  the  re- 
sult of  these  complaints,  statutes  were  passed  which  for- 
bade the  Chancellor  from  interfering  in  a  few  specified 
instances  of  legal  cognizance,  but  did  not  abridge  his  gen- 
eral jurisdiction.  In  the  reign  of  Edward  IV.  the  Court 
of  Chancery  was  in  full  operation;  the  mode  of  procedure 
by  bill  filed  by  the  complainant,  and  a  subpoena  issued 
thereon  to  the  defendant,  was  settled;  and  the  principles 
of  its  equitable  jurisdiction  were  ascertained  and  estab- 
lished upon  the  basis  and  with  the  limitations  which  have 
continued  to  the  present  time.  No  more  opposition  was 
made  to  the  court  by  the  Commons,  although  the  law  judges 
from  time  to  time,  until  as  late  as  the  reign  of  James  I., 
still  denied  the  power  of  the  Chancellor  to  interfere  with 
matters  pending  before  their  own  courts,  and  especially 
disputed  his  authority  to  restrain  the  proceedings  in  an 
action  at  law,  by  means  of  his  injunction.  This  contro- 
versy between  the  law  and  the  equity  courts,  with  respect 
to  the  line  which  separates  their  jurisdictions,  has  in  fact 
never  been  completeh^  settled;  and  perhaps  it  must  neces- 
sarily continue  until  the  two  jurisdictions  are  blended  into 
one,  or  at  least  are  administered  by  the  same  judges  in  the 
same  proceeding. ^ 

§  39,  1  Wherever  the  distinctions  between  suits  in  equity  and  actions  at 
law  have  been  abolished,  and  equitable  and  legal  rights  may  be  enforced, 
and  equitable  and  legal  remedies  may  be  obtained,  in  the  same  proceeding, 
we  might  suppose  this  contest  would  necessarily  have  disappeared,  and  it 
necessarily  would  have  disappeared  if  the  courts  had  carried  out  the 
plain  intent  of  the  legislation;  unfortunately,  however,  in  some  of  the 
states  where  this  legislation  has  been  adopted,  the  distinction  between  the 


43  ORIGIN    OF    EQUITY    JURISPRUDENCE.  §  40 

§  40.  Abolition  of  the  Court  in  England  and  in  Many 
American  States. — The  court  of  equity,  having  existed  as 
a  separate  tribunal  for  so  many  centuries,  has  at  length 
disappeared  in  Great  Britain  and  in  most  of  the  American 
states,  and  the  reforming  tendency  of  the  present  age  is 
strongly  towards  an  obliteration  of  the  lines  which  have 
hitherto  divided  the  two  jurisdictions.  By  the  recent 
legislation  of  England  and  of  many  of  the  states  in  this 
country,  the  separate  tribunals  of  law  and  of  equity  have 
been  abolished ;  the  two  jurisdictions  have  been  so  far  com- 
bined that  both  are  administered  by  the  same  court  and 
judge;  legal  and  equitable  rights  are  enforced  and  legal 
and  equitable  remedies  are  granted  in  one  and  the  same 
action ;  and  the  distinctions  which  hitherto  existed  between 
the  two  modes  of  procedure  are  as  far  as  possible  abro- 
gated, one  kind  of  action  being  established  for  all  judicial 
controversies. 1 

legal  and  equitable  jurisdictions  is  kept  up  as  sharply  as  though  there 
were  the  separate  tribunals,  and  the  different  systems  of  procedure. 

§  40,  1  The  English  Judicature  Act  of  1873,  already  quoted,  after  unit- 
ing all  the  higher  tribunals  into  one  Supreme  Court  of  Judicature,  enacts 
that  "in  every  civil  cause  or  matter,  law  and  equity  shall  be  concurrently 
administered"  by  this  court  according  to  certain  general  rules;  and  that 
generally  in  all  matters  not  particularly  mentioned  in  other  provisions  of 
the  act,  in  which  there  is  any  conflict  or  variance  between  the  rules  of 
equity  and  the  rules  of  the  common  law,  with  reference  to  the  same  mat- 
ter, the  rules  of  equity  shall  prevail:  36  &  37  Vict.,  chap.  66,  §§  24,  25. 
This  great  reform,  which  was  inaugurated  by  New  York  in  1848,  has 
been  adopted  by  the  states  of  Ohio,  Kentucky,  Indiana,  Wisconsin,  Iowa, 
Minnesota,  Missouri,  Kansas,  Nebraska,  Nevada,  California,  Oregon, 
North  Carolina,  South  Carolina,  Arkansas,  Connecticut,  Colorado,  and 
by  the  territories  of  Washington,  Montana,  Idaho,  Dakota,  Wyoming, 
Arizona,  Utah.  The  form  of  legislation  which  has  generally  been  adopted 
is  substantially  the  following:  "The  distinction  between  actions  of  law 
and  suits  in  equity,  and  the  forms  of  all  such  actions  and  suits  heretofore 
existing,  are  abolished;  and  there  shall  be  in  this  state  hereafter  but  one 
form  of  action  for  the  enforcement  or  protection  of  private  rights  and 
the  redress  of  private  wrongs,  which  shall  be  denominated  a  civil  action." 
In  two  or  three  of  the  states  a  slight  external  distinction  between  legal 
and  equitable  actions  is  still  preserved.     Their  codes  of  procedure  contain 


§  41  EQUITY    JURISPRUDENCE.  44 

§  41.  Equity  Jurisdiction  in  Other  American  States. — 
In  the  national  courts  of  the  United  States,  and  in  most  of 
the  states  which  have  not  adopted  the  reformed  procedure, 
the  two  departments  of  law  and  equity  are  still  maintained 
distinct  in  their  rules,  in  their  procedure,  and  in  their 
remedies;  but  the  jurisdiction  to  administer  both  systems 

the  following  provision :  "All  forms  of  action  are  abolished ;  but  the  pro- 
ceedings in  a  civil  action  may  be  of  two  kinds,  'ordinary'  or  'equitable.' 
The  plaintiff  may  prosecute  his  action  by  equitable  proceedings  in  all 
cases  where  courts  of  equity  had  jurisdiction,  and  must  so  proceed  in  all 
cases  where  such  jurisdiction  was  exclusive.  In  all  other  cases  the  plain- 
tiff must  pi'osecute  his  action  by  ordinary  proceedings.  An  error  of  the 
plaintiff  as  to  the  kind  of  proceedings  adopted  shall  not  cause  the  abate- 
ment or  dismissal  of  the  action,  but  merely  a  change  into  the  proper  pro- 
ceedings, and  a  transfer  of  the  action  to  the  proper  docket.  The  provi- 
sions of  this  code  concerning  the  prosecution  of  a  civil  action  apply  to 
both  kinds  of  proceedings,  whether  ordinary  or  equitable."  As  one  court 
has  jurisdiction  over  both  kinds  of  proceedings,  it  is  plain  that  the  dis- 
tinction here  preserved  is  wholly  superficial;  it  really  goes  no  further 
than  the  designation  to  be  put  at  the  commencement  of  the  plaintiff's 
pleading,  and  the  placing  the  cause  on  the  proper  docket  or  trial  list  of 
the  court.  In  1879  Connecticut  adopted  a  Practice  Act,  which  contains 
the  fundamental  and  essential  features  of  the  reformed  system  of  pro- 
cedure, although  it  rather  resembles  the  English  Judicature  Act  than  the 
Codes  of  Procedure  in  the  various  states,  since  it  only  enacts  these  funda- 
mental and  essential  principles,  and  leaves  the  details  of  practice  to  be 
regulated  by  rules  established  by  the  courts.  It  provides,  in  section  1, 
that  there  "shall  be  but  one  form  of  civil  action" ;  and  in  section  6 ;  "All 
courts  which  are  vested  with  jurisdiction,  both  at  law  and  in  equity,  may 
hereafter,  to  the  full  extent  of  their  respective  jurisdictions,  administer 
legal  and  equitable  rights,  and  apply  legal  and  equitable  remedies,  in 
favor  of  either  party,  in  one  and  the  same  suit,  so  that  legal  and  equi- 
table rights  of  the  parties  may  be  enforced  and  protected  in  one  action; 
provided,  that  wherever  there  is  any  variance  between  the  rules  of  equity 
and  the  rules  of  the  common  law,  in  reference  to  the  same  matter,  the 
rules  of  equity  shall  prevail."  It  will  be  noticed  that  this  last  clause  is 
the  same  in  effect  as  one  contained  in  the  English  Judicature  Act,  and 
this  alone  gives  the  Connecticut  system  a  supei'iority  over  that  prevailing 
in  the  other  American  states.  It  is  remarkable  that  the  codes  of  all  the 
other  states  have  not  been  amended  hy  the  introduction  of  this  most 
admirable  provision.  Equitable  and  legal  defenses  and  counterclaims  are 
also  permitted. 


45  OEIGIN    OF    EQUITY    JURISPRUDENCE.  §  42 

is  possessed  and  exercised  by  the  same  tribunal,  which  in 
one  case  acts  as  a  court  of  law,  and  in  the  other  as  a  court 
of  equity.  The  organization  of  the  judiciary  differs  widely 
in  the  states  of  this  class,  and  no  attempt  need  be  made  to 
describe  it.  The  procedure  at  law  is  based,  although  in 
most  instances  with  extensive  modifications,  upon  the  old 
common-law  method,  and  retains  in  whole  or  in  part  the 
ancient  forms  of  action.  The  equity  procedure  is  the  same 
in  its  essential  principles  with  that  which  long  prevailed  in 
the  English  Court  of  Chancery,  but  is  much  simplified  in 
its  details  and  rules. ^ 

§  42.  In  a  very  few  of  the  states  the  policy  of  separa- 
tion is  still  maintained.  Law  and  equity  are  not  only  dis- 
tinct departments,  but  they  are  administered  by  different 
tribunals,  substantially  according  to  the  system,  both  in 
respect  to  jurisdiction  and  procedure,  which  existed  in 
England  prior  to  the  recent  legislation.  There  is  a  court 
of  general  original  jurisdiction  at  law,  and  another  court 
of  equity,  consisting  of  one  or  more  chancellors,  and  the 
two  are  entirely  distinct  in  the  persons  of  the  judges,  and 
in  the  judicial  functions  which  they  possess.  Even  in 
these  states,  however,  there  is  generally  but  one  appellate 
tribunal  of  last  resort,  which  reviews  on  error  the  judg- 
ments of  the  law  courts,  and  on  appeal  the  decrees  of  the 
Chancellor.! 

§  41,  1  This  mode  of  judicial  organization  and  of  maintaining  the  two 
jurisdictions  with  one  tribunal  has  been  adopted  by  the  United  States  for 
the  national  judiciai-y,  and  by  the  following  States :  Connecticut,  Florida, 
Georgia,  Illinois,  Maine,  Maryland,  Massachusetts,  Michigan,  New  Hamp- 
shire, Pennsylvania,  Rhode  Island,  Texas,  Vermont,  Virginia,  West  Vir- 
ginia. Connecticut  no  longer  belongs  to  this  class.  By  a  statute  of  1879 
the  reformed  procedure  was,  in  its  essential  features,  adopted :  See  ante, 
note  to  §  40. 

§  42,  1  This  system  exists  in  Alabama,  Delaware,  Mississippi,  New 
Jersey,  Tennessee. 


§43, 

§§44,45. 

§§46,47, 

§§  48-54. 

§§  55-58. 

§§  59-61. 

§62. 

§§  63-67. 

43  EQUITY    JURISPBUDENCB.  46 

SECTION  n. 

THE  NATURE  OF  EQUITY. 

ANALYSIS. 

Importance  of  a  correct  notion  of  equity. 

Various  meanings  given  to  the  word. 

True  meaning  as  a  department  of  our  jurisprudence. 

Theories  of  the  early  chancellors  concerning  equity  as  both  supply- 
ing and   correcting   the   common   law. 

Sources  from  which  the  early  chancellors  took  their  doctrines;  their 
notions  of  "conscience"   as  a  ground  of  their  authority. 

Equity  finally  established  upon  a  basis  of  settled  principles. 

How  the  equitable  jurisdiction  is  determined  at  the  present  day. 

Eecapitulation :   Nature  of  equity  stated  in  four  propositions. 

§  43.  Importance  of  a  Correct  Notion  of  Equity. — I  pur- 
pose in  this  section  to  ascertain  the  nature  of  equity  as  it 
now  exists  in  one  of  the  great  departments  into  which  the 
law  of  the  United  States  and  of  England  is  divided,  and 
to  fix  its  exact  relations  with  the  other  department,  which, 
by  a  most  confusing  use  of  terms,  is  called  the  "Law"  or 
the  "Common  Law."  This  inquiry  is  not  purely  theo- 
retical; it  is,  on  the  contrarj^,  in  the  highest  degree  prac- 
tical. An  accurate  conception  of  equity  is  indispensable 
to  the  due  administration  of  justice.  If  a  certain  theory 
of  its  nature,  which  now  prevails  to  some  extent,  should 
become  universal,  it  would  soon  destroy  all  sense  of  cer- 
tainty and  security  which  the  citizen  has,  and  should  have, 
in  respect  to  the  existence  and  maintenance  of  his  juridical 
rights.  Since  the  combination  of  legal  and  equitable  reme- 
dies in  one  judicial  proceeding  which  has  been  effected  in 
many  of  the  states,  the  notion  seems  to  have  been  revived, 
somewhat  vague  and  undefined  perhaps,  but  still  widely 
diffused  among  the  legal  profession,  that  equity  is  noth- 
ing more  or  less  than  the  power  possessed  by  judges — 
and  even  the  duty  resting  upon  them — to  decide  every  case 
according  to  a  high  standard  of  morality  and  abstract 
right;  that  is,  the  power  and  duty  of  the  judge  to  do  jus- 


47  THE    NATURE    OF    EQUITY.  §  44 

tice  to  the  individual  parties  in  each  case.  This  concep- 
tion of  equity  was  known  to  the  Roman  jurists,  and  was 
described  by  the  phrase,  Arbitrium  honi  viri,  which  may 
be  freely  translated  as  the  decision  upon  the  facts  and 
circumstances  of  a  case  which  would  be  made  by  a  man  of 
intelligence  and  of  high  moral  principle;  and  it  was  un- 
doubtedly the  theory  in  respect  to  their  own  functions, 
commonly  adopted  and  acted  upon  by  the  ecclesiastical 
chancellors  during  the  earliest  periods  of  the  English 
Court  of  Chancery.  It  needs  no  argument  to  show  that  if 
this  notion  should  become  universally  accepted  as  the  true 
definition  of  equity,  every  decision  would  be  a  virtual  arbi- 
tration, and  all  certainty  in  legal  rules  and  security  of  legal 
rights  would  be  lost.* 

§  44.  Various  Meanings  Given  to  the  Word. — ^Before 
proceeding  to  examine  the  nature  of  English  and  American 
equity,  as  above  stated,  I  shall  briefly  mention  some  of  the 
meanings  which  have  been  given  to  the  word,  taken  in  its 
general  sense,  and  not  as  designating  a  particular  depart- 
ment of  the  municipal  law.  The  original  or  root  idea  of 
the  word,  as  first  used  by  the  Roman  jurists,  universality, 
and  thence  impartiality,  has  already  been  explained. 
From  this  fundamental  notion,  equity  has  come  to  be  em- 
ployed with  various  special  significations.  It  has  been 
applied  in  the  interpretation  of  statutes,  when  a  legislative 
enactment  is  said  to  be  interpreted  equitably;  or,  as  the 
expression  often  is,  according  to  the  equity  of  the  statute. 
This  takes  place  when  the  provisions  of  a  statute,  being 
perfectly  clear,  do  not  in  terms  embrace  a  case  which,  in 
the  opinion  of  the  judge,  would  have  been  embraced  if  the 
legislator  had  carried  out  his  general  desig-n.  The  judge, 
supplying  the  defective  work  of  the  legislator,  interprets 
the  statute  extensively,  or  according  to  its  equity,  and 
treats  it  as  though  it  actually  did  include  the  particular 

§  43,  (a)  The  text  is  quoted  in  L.  E.  A.  1917E,  633,  162  N.  W.  399, 
Wade     V.     Major,     36     N.     D.     331,       dissenting  opinion. 


§  45  EQUITY   JURISPRUDENCE.  48 

case.  The  word  was  sometimes  used  in  this  sense  by  the 
Roman  jurists,  when  applied  to  modes  of  interpretation, 
and  also  by  the  earlier  English  text-writers  and  judges; 
but  is  not  often  employed  with  such  a  meaning  by  writers 
of  the  present  day. 

§  45.  Another  signification  sometimes  given  to  equity  is 
that  of  judicial  impartiality ;  the  administration  of  the  law 
according  to  its  true  spirit  and  import,  uninfluenced  by 
any  extrinsic  motives  or  circumstances ;  the  application  of 
the  law  to  particular  cases,  in  conformity  with  the  special 
intention  or  the  general  design  of  the  legislator.^  A  third 
meaning  makes  equity  synonjTiious  with  natural  law  as 
that  term  is  used  by  modern  writers,  or  morality;  so  that 
it  practically  becomes  the  moral  standard  to  which  all  law 
should  conform.  It  is  in  this  sense  that  the  epithet 
''equitable"  is  constantly  used,  even  at  the  present  day, 
by  judges  and  text-writers,  in  order  to  describe  certain 
doctrines  and  rules  which,  it  is  supposed,  will  tend  to  pro- 
mote justice  and  right  in  the  relations  of  mankind,  or  be- 
tween the  litigant  parties  in  a  particular  case.^  The  only 
other  signification  which  I  shall  mention  does  not  greatly 
differ  from  the  one  last  given.  In  that  use  of  the  term, 
equity  is  the  unchangeable  system  of  moral  principles  to 
which  the  law  does  or  should  conform;  but  in  this  use  it 
rather  describes  the  power  belonging  to  the  judge — a 
power  which  must,  of  course,  be  exercised  according  to 

§  45,  1  In  accordance  with  this  conception,  the  following  definitions  have 
been  given :  "The  application  of  the  statute  law  to  a  given  case,  agreeably 
to  the  specific  intention  or  the  general  design  of  the  legislator."  "^quitas 
nihil  est  quam  benigna  et  humana  juris  scripti  interpretation  non  ex  verbis, 
sed  a  mente  legislatoris  facta."  (Equity  is  nothing  but  the  liberal  and 
humane  interpretation  of  the  written  law,  made,  not  according  to  its  words, 
but  in  conformity  with  the  intent  of  the  legislator.)  "Benignius  leges 
interpretandoe  sunt,  quo  voluntas  earum  conservaretur."  (Positive  laws 
ought  to  be  interpreted  liberally,  so  that  their  design  will  be  preserved.) 

§  45,  2  It  is  with  this  meaning  of  the  word  that  French  jurists  have  said : 
"L'equite  est  V esprit  de  non  lois";  and  a  Roman  jurist  said:  ''JSquitas  est 
Iwnestas." 


49  THE  NATURE  OF  EQUITY.  §  46 

liis  own  standard  of  right — to  decide  the  cases  before  him 
in  accordance  with  those  principles  of  morality,  and  so  us 
to  promote  justice  between  suitors,  even  though  in  thus 
deciding  some  rule  of  positive  law  should  be  violated  or 
at  least  disregarded.  This  conception  of  equity  regards 
it,  not  as  a  system  of  juridical  principles  and  rules  based 
upon  morality,  right,  and  justice,  but  rather  as  a  special 
function  or  authority  of  the  courts  to  dispense  with  fixed 
legal  rules,  to  limit  their  generality,  or  to  supplement  their 
defects  in  particular  cases,  not  in  obedience  to  any  higher 
and  more  comprehensive  doctrines  of  the  same  positive 
iiational  jurisprudence,  but  in  obedience  to  the  dictates 
of  natural  right,  or  morality,  or  conscience. ^ 

§  46.  True  Meaning  as  a  Department  of  Our  Jurispru- 
dence.— I  am  now  prepared  to  examine,  and  if  possible  de- 
termine, the  true  nature  of  equity  considered  as  an  estab- 
lished branch  of  our  American  as  well  as  of  the  English 
jurisprudence.  We  are  met  at  the  very  outset  by  numer- 
ous definitions  and  descriptions  taken  from  old  writers 
and  judges  of  great  ability  and  high  authority,  many  of 
which  are  entirely  incorrect  and  misleading,  so  far  at 
least  as  they  apply  to  the  system  which  now  exists,  and 
has  existed  for  several  generations.  These  definitions 
attribute  to  equity  an  unbounded  discretion,  and  a  power 
over  the  law  unrestrained  by  any  rule  but  the  conscience 
of  the  Chancellor,  wholly  incompatible  with  any  certainty 
or  security  of  private  right.  For  the  purpose  of  illus- 
trating these   loose   and  inaccurate  -conceptions,   I  have 

§45,  3  This  theory  was  known  to  the  Roman  juridical  writers;  it  was 
the  notion  constantly  maintained  by  Cicero,  who  says :  "^quitas  est  laxi- 
mentum  juris,"  and  traces  of  it  are  found  throughout  the  Digest.  It  was 
universally  adopted  by  the  clerical  chancellors  in  the  earliest  stages  of  the 
chancery  jurisdiction;  and  the  English  equity  commenced,  and  for  a  con- 
siderable period  continued,  its  growth  as  a  direct  result  of  this  conception  : 
See  2  Austin  on  Jurisprudence,  pp.  272-280. 
1—4 


§  46  EQUITY    JUKISPBUDENCE.  50 

placed  in  the  foot-note  a  number  of  extracts  taken  from 
the  earlier  writers.^ 

§46,  1  In  the  Doctor  and  Student  (Dial.  1,  cbap.  16),  equity  is  thus 
described:  "In  some  cases  it  is  necessary  to  leave  the  words  of  the  law, 
and  to  follow  Avhat  reason  and  justice  requireth,  and  to  that  intent  equity  is 
ordained;  that  is  to  say,  to  temper  and  mitigate  the  rigor  of  the  law.  .  .  . 
And  so  it  appeareth  that  equity  taketh  not  away  the  very  right,  but  only 
that  that  seemeth  not  to  be  right  by  the  general  words  of  the  law.  .  .  . 
Efjuity  is  righteousness  that  considereth  all  the  particular  circumstances  of 
the  deed,  which  is  also  tempered  with  the  sweetness  of  mercy."  In  Grounds 
and  Rudiments  (pp.  5,  6)  it  is  said:  "As  summum  jus  summa  est  injuria 
since  it  cannot  consider  circumstances,  and  as  equity  takes  in  all  the  circum- 
stances of  the  case,  and  judges  of  the  whole  matter  according  to  good' 
conscience,  this  shows  both  the  use  and  excellency  of  equity  above  any  pre- 
scribed law.  .  .  .  Equity  is  that  which  is  commonly  called  equal,  just,  and 
good,  and  is  a  mitigation  and  moderation  of  the  common  law  in  some  cir- 
cumstances, either  of  the  matter,  person,  or  time;  and  often  it  dispenseth 
with  the  law  itself.  .  .  .  The  matters  of  which  equity  holdeth  cognizance 
in  its  absolute  power  are  such  as  are  not  remediable  at  law;  and  of  them 
the  sorts  may  be  said  to  be  as  infinite  almost  as  the  different  affairs  con- 
versant in  human  life.  .  .  .  Equity  is  so  extensive  and  various  that  every 
particular  case  in  equity  may  be  truly  said  to  stand  upon  its  own  particular 
circumstances;  and  therefore,  under  favor,  I  apprehend  precedents  not 
of  that  great  use  in  equity  as  some  would  contend,  but  that  equity  thereby 
may  possibly  be  made  too  much  a  science  for  good  conscience."  In  Finch's 
Law  (p.  20)  it  is  said:  "The  nature  of  equity  is  to  amplify,  enlarge,  and 
add  to  the  letter  of  the  law";  and  in  the  treatise  called  Eunomus  (Dial.  3, 
§  60)  it  was  called  "the  power  of  moderating  the  summum  jus."  Lord 
Bacon  adds  the  weight  of  his  authority  to  this  view,  saying  in  one  place : 
"Habent  similiter  Curias  Praetorise  potestatem  tam  subveniendi  contra 
rigorem  legis,  quam  supplendi  defectum  legis"  (the  court  of  chancery  in 
like  manner  has  the  power  as  well  of  relieving  against  the  rigor  of  the  law 
as  of  suppljdng  its  defects);  and  in  another:  "Chancery  is  ordained  to 
supply  the  law,  and  not  to  subvert  the  law."  Lord  Kames  states  the 
same  theory  without  any  limitation  (Kames's  Eq.,  Introd.,  pp.  12,  15)  : 
"It  appears  now  clearly  that  a  court  of  equity  commences  at  the  limits 
of  the  common  law  and  enforces  benevolence  where  the  law  of  nature  makes 
it  our  duty.  And  thus  a  court  of  equity,  accompanying  the  law  of  nature 
in  its  general  refinements,  enforces  every  natural  duty  that  is  not  provided 
for  at  the  common  law.  ...  A  court  of  equity  boldlj^  undertakes  to  correct 
or  mitigate  the  rigor,  and  what  in  a  proper  sense  may  be  termed  the  injus- 
tice, of  the  common  law."     In  the  well-known  treatise  called  Fonblanque 


51  THE  NATUEE  OF  EQUITY.  §  47 

§  47.  It  is  very  certain  that  no  court  of  chancery  juris- 
diction would  at  the  present  day  consciously  and  inten- 
tionally attempt  to  correct  the  rigor  of  the  law  or  to  supf)ly 
its  defects,  by  deciding  contrary  to  its  settled  rules,  in  any 
manner,  to  any  extent,  or  under  any  circumstances  beyond 
the  already   settled  principles   of   equity  jurisprudence.* 

on  Equity,  the  author  says  (b.  1,  chap.  1,  §  3)  :  "So  there  will  be  a  neces- 
sity of  having  recourse  to  natural  principles,  that  what  is  wanting  to  the 
finite  may  be  supplied  out  of  that  which  is  infinite.  And  this  is  properly 
what  is  called  equity,  in  opposition  to  strict  law.  .  .  .  And  thus  in  chancery 
every  particular  case  stands  upon  its  own  particular  circumstances;  and 
although  the  common  law  will  not  decree  against  the  general  rule  of  law, 
yet  chancery  doth,  so  as  the  example  introduce  not  a  general  mischief. 
Every  matter,  therefore,  that  happens  inconsistent  with  the  design  of  the 
legislator,  or  is  contrary  to  natural  justice,  may  find  relief  here.  For  no 
man  can  be  obliged  to  anything  contrary  to  the  law  of  nature ;  and  indeed, 
no  man  in  his  senses  can  be  presumed  willing  to  oblige  another  to  it.  But 
if  the  law  hath  determined  a  matter  with  all  its  circumstances,  equity  cannot 
intermeddle."  The  same  large  view  of  equity  has  sometimes  been  taken 
by  the  earlier  judges,  but  not  to  any 'considerable  extent  since  the  Reforma- 
tion. The  following  example  will  suffice :  In  Dudley  v.  Dudley,  Prec.  Ch. 
241,  244,  Sir  John  Trevor,  M.  R.,  said:  "Now,  equity  is  no  part  of  the 
law,  but  a  moral  virtue  which  qualifies,  moderates,  and  reforms  the  rigor, 
hardness,  and  edge  of  the  law,  and  is  a  universal  truth.  It  does  also  assist 
the  law  where  it  is  defective  and  weak  in  the  constitution,  which  is  the 
life  of  the  law;  and  defends  the  law  from  crafty  evasions,  delusions,  and 
new  subtleties  invented  and  contrived  to  evade  and  delude  the  common 
law,  whereby  such  as  have  undoubted  right  are  made  remediless.  And 
this  is  the  office  of  equity,  to  protect  and  support  the  common  law  from 
shifts  and  contrivances  against  the  justice  of  the  law.  Equity,  thei-efore, 
does  not  destroy  the  law,  nor  create  it,  but  assists  it."  I  shall  end  these 
citations  by  a  quotation  from  Chancellor  D'Aguesseau,  the  great  French 
jurist  (GEuvres,  vol.  1,  p.  138)  :  "Premier  objet  du  legislateur,  dopositaire 
de  son  esprit,  compagne  inseperable  de  la  loi,  I'equite  ne  pent  jamais  etre 
contraire  a  la  loi  meme.  Tout  ce  que  blesse  cette  equite,  veritable  source 
de  toutes  les  lois,  ne  resiste  pas  moins  a  la  justice." 

§  47,   (a)   The    text    is    quoted    in  in  Sell  v.  West,  125  Mo.  621,  46  Am. 

Harper  v.   Clayton,   84  Md.   356,   57  St.  Eep.  508,  28  S.  W.  969;   also  in 

Am.  St.  Eep.  407,  35  L.  K.  A.   211,  Wade  v.  Major,  36  N.  D.  331,  L.  R.  A. 

35  Atl.  1083;  Henderson  v.  Hall,  134  1917E,  633,  162  N.  W.  399,  dissenting 

Ala.   455,   32   South.   840;    and   cited  oinuiou. 


§  48  EQUITY   JUEISPRUDENCE.  52 

Those  principles  and  doctrines  may  unquestionably  be  ex- 
tended to  new  facts  and  circumstances  as  they  arise,  which 
are  analogous  to  facts  and  circumstances  that  have  already 
been  the  subject-matter  of  judicial  decision,  but  this  pro- 
cess of  growth  is  also  carried  on  in  exactly  the  same 
manner  and  to  the  same  extent  by  the  courts  of  law.  Nor 
would  a  chancellor  at  the  present  day  assume  to  decide 
the  facts  of  a  controversy  according  to  his  own  standard 
of  right  and  justice,  independently  of  fixed  rules, — he 
would  not  attempt  to  exercise  the  arhitrium  honi  viri;  on 
the  contrary,  he  is  governed  in  his  judicial  functions  by 
doctrines  and  rules  embodied  in  precedents,  and  does  not 
in  this  respect  possess  any  greater  liberty  than  the  law 
judges. 

§  48.  Theories  of  the  Early  Chancellors  Concernini^ 
Equity. — It  is  nevertheless  true  that  there  was  much  in 
the  proceedings  of  the  early  clerical  and  some  of  the  lay 
chancellors  which  furnished  a  ground  for  the  theories 
given  in  the  foregoing  note.  In  the  commencement  of  the 
jurisdiction,  and  down  to  a  time  when  the  principles  of 
equity  as  they  now  exist  had  become  established,  every 
decision  made  by  chancery,  every  equitable  doctrine  which 
it  declared,  every  equitable  rule  which  it  announced,  was 
of  necessity  an  innovation  to  a  greater  or  less  extent  upon 
the  then  existing  common  law,  sometimes  supplying  de- 
fects both  with  respect  to  primary  rights  and  to  remedies 
which  the  law  did  not  recognize,  and  sometimes  invading, 
disregarding,  and  overruling  the  law  by  enforcing  rights 
or  conferring  remedies  with  respect  to  which  the  law  was 
not  silent,  but  which  it  actually  denied  and  refused.  The 
very  growth  of  equity,  as  long  as  it  was  in  its  formative 
period,  was  from  its  essential  nature  an  antagonism  to 
the  common  law,  either  by  way  of  adding  doctrines  and 
rules  which  the  law  simply  did  not  contain,  or  by  way  of 
creating  doctrines  and  rules  contradictory  to  those  which 
the  law  had  settled  and  would  have  applied  to  the  same 


53  THE    NATURE    OF    EQUITY.  §  49 

facts  and  circumstances.  It  would  be  a  downright  absurd- 
ity, a  flat  contradiction  to  the  plainest  teachings  of  his- 
tory, to  deny  that  the  process  of  building  up  the  system 
of  equity  involved  and  required  on  the  part  of  the  chan- 
cellors an  invasion,  disregard,  and  even  open  violation  of 
many  established  rules  of  the  common  law;  in  no  other 
way  could  the  system  of  equity  jurisprudence  have  been 
commenced  and  continued  so  as  to  arrive  at  its  present 
proportions.^ 

§  49.  Nor  can  it  be  denied  that  the  early  clerical  and 
even  lay  chancellors,  in  their  first  processes  of  innovating 
upon  the  law,  and  laying  the  foundations  of  equity,  were 
constantly  appealing  to  and  governed  by  the  eternal  prin- 
ciples of  absolute  right,  of  a  lofty  Christian  morality; 
that  in  these  principles  they  sought  and  found  the  mate- 
rials for  their  decisions ;  that  they  were  ever  guided  in 
their  work  by  Conscience,  not  by  what  has  since  been  aptly 
termed  the  civil  or  judicial  conscience  of  the  court,  but  by 
their  own  individual  consciences,  by  their  moral  sense 
apprehending  what  is  right  and  wrong,  by  their  own  con- 
ceptions of  bona  fides.  The  very  ground  of  the  delegated 
authority  required  them  to  do  so,  and  the  function  which 
they  possessed  and  exercised  was  literally  the  arbitrium 
boni  viri.  In  this  manner  the  first  precedents  were  made, 
and  undoubtedly  for  a  considerable  space  of  time  the  de- 
cisions in  chancery  varied  and  fluctuated  according  to  the 
personal  capacity  and  high  sense  of  right  and  justice  pos- 
sessed by  individual  chancellors.  In  the  lapse  of  time, 
however,  the  precedents  had  multiplied,  and  from  the  uni- 
versal conservative  tendency  of  courts  to  be  controlled  by 
what  has  been  already  decided,  a  system  of  doctrines  had 
developed    and    assumed    a    comprehensive    shape;    and 

§  48,  (a)   The    text    is    quoted    in  following  paragraphs   are    cited,    to 

Eoberson  v.  Eoehester  Folding  Box  the  effect  that  modern  equity  is  a 

Co.,  171  N.  Y.  538,  546,  89  Am.  St.  system  of  settled  rules,  in  McElroy 

Eep.  828,  59  L.  R.  A.  478,  64  N.  E.  v.  Mastcrson  (Miss.),  156  Fed.  36,  84 

442,  by  Parker,  C.  J.     This  and  the  C.  C.  A.  202. 


§  50  EQUITY    JURISPRUDENCE.  54 

finally,  when  it  Lad  attained  a  reasonable  completeness 
with  respect  to  fundamental  principles  and  general  rules, 
this  accumulation  became  the  storehouse  whence  the  chan- 
cellors obtained  the  material  for  their  decisions,  and  both 
guided  and  restrained  their  judicial  action.  Wlien  this 
time  arrived,  all  "assumption  that  the  Chancellor  was  to 
be  governed  by  his  own  standard  and  conception  of  nat- 
ural justice  disappeared  from  the  court  of  equity,  and 
individual  conscience  was  no  longer  the  motive  power  in 
that  tribunal;  The  accuracy  of  this  general  account  will 
appear  from  a  brief  review  of  what  the  early  chancellors 
actually  did  during  the  formative  period  of  their  jurisdic- 
tion, and  of  the  principles  which  they  adopted  in  the  prose- 
cution of  their  reformatory  work. 

§  50.  In  the  original  delegation  of  general  authority  by 
the  Crown  to  the  Chancellor,  over  matters  falling  under 
the  King's  judicial  prerogative  of  grace,  such  authority 
was  to  be  exercised  according  to  Conscience,  Equity,  Good 
Faith,  and  Honesty.  It  was  undoubtedly  a  maxim,  even 
in  the  earliest  times,  that  the  equitable  jurisdiction  of 
chancery  only  extended  to  such  matters  as  ivere  not  reme- 
diable by  the  common  law.  At  the  same  time  great  lati- 
tude was  used  in  determining  what  matters  were  not  thus 
remediable.  The  chancellors  therefore  exercised  a  juris- 
diction which  was  supplementary  to  that  of  the  law  courts, 
and  to  this  there  was  never  any  real  opposition.  At  the 
same  time  they  exercised  a  jurisdiction  which  was  correc- 
tive of  the  law,  and  this  was  undoubtedly  the  most  impor- 
tant part  of  their  functions.  It  is  absolutely  certain  from 
all  the  existing  records,  and  from  the  result  itself  of  their 
work,  that  they  did  not  refrain  from  deciding  any  par- 
ticular case,  according  to  their  views  of  equity  and  good 
conscience,  merely  because  the  doctrine  which  they  fol- 
lowed or  established  in  making  the  decision  was  inconsis- 
tent with  the  rule  of  law  applicable  to  the  same  facts,  nor 
because  the  law  had  deliberately  and  intentionally  refused 


55  THE    NATUliE    OF    EQUITY.  §  51 

to  acknowledge  the  existence  of  a  primary  right,  or  to  give 
a  remedy  under  those  facts  and  circumstances.^  *  That 
this  corrective  authority  was  possessed  by  the  chancellors, 
and  freely  exercised  by  them  in  the  periods  of  which  I  am 
speaking,  is  recognized  by  the  ancient  writers. ^ 

§  51.  How  far  the  early  chancellors  went  in  recognizing 
and  upholding  primary  rights  and  granting  remedies, 
which  were  not  only  overlooked,  but  were  expressly  denied, 
refused,  and  prohibited  by  positive  and  well-settled  rules 
of  the  common  law,  is  seen  from  a  brief  summary  of  a 
few  instances  in  which  such  equitable  doctrines  were  estab- 
lished in  contradiction  to  legal  dogmas.  One  executor  or 
joint  tenant  might  sue  his  coexecutor  or  cotenant  in  the 
Court  of  Chancery  in  respect  to  their  joint  interests, 
although  forbidden  to  do  so  by  the  law.^  When  an 
obligee,  by  reason  of  loss  or  other  accident,  could  not  pro- 
duce the  bond,  he  was  prohibited  by  an  express  rule  of  the 
law  from  maintaining  an  action  upon  it;  but  the  Court  of 
Chancery,  upon  proof  of  such  facts,  would  grant  him  full 
relief,  by  enforcing  the  obligation.  Conversely,  if  an 
obligor  or  other  debtor  upon  a  sealed  instrument  had  paid 

§  50,  1  Thus  in  a  case  before  Chancellor  Morton,  Archbishop  of  Canter- 
burj^  in  the  reign  of  Henry  VII.,  it  was  argued  that  he  should  grant  no 
relief,  because  upon  the  facts  in  the  case  the  common  law  admitted  no 
right  and  gave  no  remedy.  The  Chancellor  replied  to  this  argument:  "It 
is  so  in  all  cases  where  there  is  no  remedy  at  the  common  law  and  no  right, 
and  yet  a  good  remedy  in  equity."  "Et  per  ceo  nul  remedy  per  comen 
ley,  ergo  ne  per  conscievs,  issit  est  in  tout  cases  nul  remedy  per  comen  ley 
ne  nid  droit  et  imcore  bon  remedy  per  consciens" :  Yeai*-Book,  7  Hen.  VII., 
fol.  12. 

§  50,  2  Thus  in  Doctor  and  Student,  which  was  written  in  the  early  part 
of  the  reign  of  Henry  VIII.,  it  is  stated:  "Conscience  (i.  e.,  equity)  never 
resisteth  the  law  nor  addeth  to  it,  but  only  when  the  law  is  directly  in  itself 
against  the  law  of  God  or  law  of  reason." 

§  50,  (a)  The  text  is  cited,  to  this  §  51,  (a)  The     text     is  cited     in 

effect,    in    Fagan    v.    Troutman,    25  Peterson  v.   Vanderburgh,  77   Minn. 

Colo.  App.  251,  138  Pac.  442,  dissent-  218,  77  Am.  St.  Rep.  671,  79  N.  W. 

ing  opinion.  828. 


§  52  EQUITY    JUEISPRUDENCE.  56 

the  debt  in  full,  but  had  neglected  to  take  a  release  or  a 
surrender  of  the  bond,  the  law  held  him  still  liable,  and 
gave  him  no  defense  in  an  action  brought  to  recover  pay- 
ment of  the  debt  a  second  time ;  but  chancery  admitted  and 
enforced  this  conscientious  defense  by  restraining  the 
creditor  from  prosecuting  his  legal  action.  Again,  the 
Court  of  Chancery,  acting  upon  its  equitable  principles,  re- 
lieved parties  in  many  instances  from  forfeitures  which 
had  been  clearly  incurred  according  to  express  rules  of  the 
law,  and  which  courts  of  law  still  enforced  according  to 
the  strictest  letter  of  the  provisions  from  which  they  re- 
sulted. Notwithstanding  statutes  wliich  prohibited  the 
Court  of  Chancery  from  reviewing  judgments  rendered  by 
the  courts  of  law,  the  Chancellor  gave  relief,  where  it  was 
demanded  by  equity  and  good  conscience,  against,  the 
operation  of  such  judgments.  He  avoided  the  express 
prohibitory  language  of  the  statutes  by  not  assuming  to 
act  directly  upon  the  judgment  itself,  but  upon  the  parties 
personally,  by  restraining  the  one  who  had  recovered  the 
judgment  from  taking  or  prosecuting  any  measures  for  its 
enforcement,  and  even  by  compelling  him  to  restore  the 
property  which  he  had  acquired  by  its  means.  There  is 
no  higher  example  of  the  equity  jurisdiction  than  this,  nor 
one  which  more  directly  interferes  with  the  administration 
of  the  law,  since  the  legal  right  controverted  and  over- 
thrown by  chancery  no  longer  existed  in  the  form  of  an 
abstract  rule,  but  had  been  established  in  a  concrete  form 
as  the  right  existing  between  the  parties. 

§  52.  In  another  class  of  cases,  notwithstanding  the 
general  maxim  that  chancery  should  only  have  jurisdiction 
of  such  matters  as  were  not  remediable  by  the  common  law, 
the  Chancellor  interfered,  and  extended  his  authority  over 
facts  and  circumstances  for  which  a  legal  remedy  was  pro- 
vided, and  gave  a  ditferent  and  more  efficient  remedy 
wholly  unknown  to  the  common  law.  The  equitable  rem- 
edy of  specific  performance  of  contracts,  although  the  law 


57  THE    NATURE    OF    EQUITY.  §  52 

gave  the  remedy  of  damages,  is  an  illustration  of  this 
class.  The  whole  doctrine  of  equity  concerning  uses,  and 
afterwards  concerning  trusts,  exhibits  in  the  clearest  light 
the  action  of  the  Chancellor,  not  only  in  supplementing 
but  in  evading  and  contradicting  legal  rules  of  the  most 
positive  and  mandatory  character.  An  estate  was  recog- 
nized and  treated  as  the  real,  essential  interest,  which  the 
law  ignored;  an  owner  was  protected,  and  his  rights  of 
property  were  enforced,  whom  the  law  declared  not  to  be 
the  owner;  and  as  a  consequence,  the  feudal  dogmas,  the 
feudal  incidents  of  landed  proprietorship,  and  the  right  of 
the  feudal  lords,  all  of  which  the  law  upheld,  were  over- 
ruled and  destroyed.  Still  another  most  remarkable  illus- 
tration of  the  extent  and  manner  in  which  the  Court  of 
Chancery  invaded  the  rules  and  contradicted  the  policy  of 
the  common  law  was  exhibited  by  its  doctrine  concerning 
the  separate  estate  of  married  women,  and  their  power  to 
deal  therewith  as  though  they  were  unmarried.  Nothing 
was  more  diametrically  opposed  to  the  principles  of  the 
ancient  common  law  than  this  capacity  to  be  a  separate 
proprietor  conferred  upon  the  wife ;  ^  and  no  equitable 
doctrine  perhaps  interfered  with  a  greater  number  of  legal 
rules  concerning  the  status  of  marriage,  and  the  proprie- 
tary rights  of  the  husband  which  it  created.  The  fore- 
going instances,  which  have  been  selected  merely  as 
examples,  show  beyond  all  possible  doubt  that  the  juris- 
diction of  equity,  while  passing  through  its  period  of 
growth,  was  constantly  exercised  in  relaxing,  contradict- 
ing, and  defeating  legal  rules  which  were  deemed  too 
harsh,  unjust,  and  unconscientious  in  their  practical  opera- 
tion, as  well  as  in  supplying  omissions,  and  granting  reme- 
dies which  the  law  courts  were  unable  to  administer. 

§  52,  1  This  equitable  doctrine  not  only  interfered  with  the  legal  rules 
as  to  property :  it  contradicted  one  of  the  principles  which  the  common  law 
regarded  as  the  foundation  of  society, — the  unity  of  the  family  produced 
by  the  absolute  headship  of  the  husband.  Fleta  (b.  iii.,  chap.  3)  expressly 
states  the  doctrine  that  conveyance  to  a  stranger  for  the  benefit  of  a  mar- 
ried woman  is  void  as  being  against  the  policy  of  the  law. 


§  53  EQUITY    JUEISPRUDENCB.  58 

§  53.  While  tlie  early  chancellors  did  much,  they 
stopped  very  far  short  of  consummating  the  work  of  re- 
form by  extending  it  to  the  entire  body  of  the  common  law. 
They  left  untouched,  in  full  force  and  operation,  a  great 
number  of  legal  rules  which  were  certainly  as  harsh,  un- 
just, and  unconscientious  as  any  of  those  which  they  did 
attack ;  and  their  successors  upon  the  chancery  bench  have 
never  assumed  to  complete  what  they  left  unfinished. 
That  task  has  since  been  accomplished,  if  at  all,  either  by 
the  legislature,  or  by  the  common-law  courts  themselves. 
Among  these  legal  rules  with  which  equity  did  not  inter- 
fere, the  following  may  be  mentioned  as  illustrations :  The 
doctrine  by  which  the  lands  of  a  delator  were  generally 
exempted  from  all  liability  for  his  simple  contract  debts  ;i 
the  entire  doctrine  of  collateral  warranty,  which  was  con- 
fessedly most  unjust  and  harsh  in  its  operation,  and  rest- 
ing wholly  upon  that  kind  of  verbal  reasoning  which  really 
had  no  meaning; 2  and  in  fact,  most  of  the  particular  rules 
concerning  real  estate,  which  had  been  logically  derived 
by  the  courts  of  law  from  the  feudal  institutions  and  cus- 
toms. There  might,  perhaps,  have  been  a  sufficient  reason 
for  leaving  this  latter  mass  of  rules,  as  such,  untouched. 
The  introduction  of  uses,  and  afterwards  of  trusts,  and  the 
invention  of  the  married  woman's  separate  estate,  with- 
drew the  greater  part  of  the  land,  so  far  as  its  actual  en- 
joyment and  control  were  concerned,  from  the  operation 
of  the  common-law  dogmas,  and  placed  it  under  the  do- 
main of  equity;  and  as  the  Court  of  Chancery  had  an 
exclusive  jurisdiction  over  these  new  species  of  estates, 
and  treated  them  as  the  true  ownerships,  and  in  dealing 
with  them  disregarded  the  most  objectionable  of  the  feudal 

§  53,  13  Black  Com.,  p.  430. 

§  53,  2  Lord  Cowper  said  of  this  doctrine,  in  Earl  of  Bath  v.  Sherwin, 
10  Mod.  4:  "A  collateral  wai-ranty  was  certainly  one  of  the  harshest  and 
most  cruel  parts  of  the  eomimon  law,  because  there  was  no  such  pretended 
recompense  (as  in  the  case  of  a  lineal  warranty) ;  yet  I  do  not  find  that 
the  court  (of  chancery)  ever  gave  satisfaction." 


59  THE    NATURE   OF   EQUITY.  §  54 

incidents,  tlie  cliancellors  probably  thought  that  these  rules 
of  the  common  law  had  been  practically  abrogated,  or  at 
least  evaded  en  masse,  and  that  there  was  therefore  no 
necessity  for  any  further  attack  upon  them  in  detail. 

§  54.  Sir  William  Blackstone,  citing  these  and  some 
other  instances  in  which  the  Court  of  Chancery  refrained 
from  interfering  with  legal  doctrines,  and  using  them  as 
the  basis  of  his  argument,  goes  to  the  extent  of  denying 
that  equity  has  or  ever  had  any  power  to  correct  the  com- 
mon law  or  to  abate  its  rigor.^  This  is  one  example  among 
many  of  Blackstone 's  utter  inability  to  comprehend  the  real 
spirit  and  workings  of  the  English  law.  That  equity  did 
to  a  large  extent  interfere  with  and  prevent  the  practical 
operation  of  legal  rules,  and  did  thus  furnish  to  suitors  a 
corrective  of  the  harshness  and  injustice  of  the  common 
law,  history  and  the  very  existing  system  incontestably 
show;  and  that  the  chancellors,  from  motives  of  policy  or 
otherwise,  refrained  from  exercising  their  reformatory 
function  in  certain  instances,  is  not,  in  the  face  of  the  his- 

§  54,  13  Blark.  Com.,  p.  430.  His  lang^iage  is :  "It  is  said  that  it  is 
the  business  of  a  court  of  equity  in  England  to  abate  the  rigor  of  the 
common  law.  But  no  such  power  is  contended  for.  Hard  was  the  case 
of  a  bond  creditor  whose  debtor  devised  away  his  real  estate ;  rigorous  and 
unjust  the  rule  which  put  the  devisee  in  a  better  condition  than  the  heir; 
yet  a  court  of  equity  had  no  power  to  interfere.  Hard  is  the  common  law 
still  subsisting  that  land  devised  or  descending  to  the  heir  should  not  be 
liable  to  simple  contract  debts  of  the  ancestor  or  devisor,  although  the 
money  was  laid  out  in  the  purchase  of  the  very  land;  and  that  the  father 
shall  never  immediately  succeed  as  heir  to  the  real  estate  of  the  son.  But 
a  court  of  equity  can  give  no  relief,  though  in  both  these  instances  the 
artificial  reason  of  the  law,  arising  from  feudal  principles,  has  long  since 
ceased."  The  statement  in  this  quotation,  that  "equity  had  no  power  to 
interfere,"  is  merely  a  gratuitous  assumption ;  it  certainly  had  the  same 
power  to  interfere  which  it  possessed  and  exercised  in  the  case  of  an 
obligor  who  had  paid  the  debt  secured  by  his  bond  but  had  neglected  to 
take  a  release.  The  most  that  can  be  truthfully  said  is,  that  "equity  did 
not  interfere."  Blackstone,  being  purely  a  common-law  lawyer,  had  little 
knowledge  of  equity,  and  his  authority  concerning  its  principles  and  juris- 
diction was  never  great. 


§  55  EQUITY    JURISPRUDENCE.  60 

torical  facts,  any  arg-ument  against  the  existence  of  tlie 
power.  And  even  in  the  present  condition  of  equity  as 
an  established  department  of  the  national  jurisprudence, 
whenever  a  court  determines  the  rights  of  parties  by  en- 
forcing an  equitable  doctrine  which  differs  from  and  per- 
haps conflicts  with  the  legal  rule  applicable  to  the  same 
facts,  such  court  does  still,  in  very  truth,  exercise  a  cor- 
rective function,  and  wield  an  authority  by  which  it  relieves 
the  rigor  and  often  the  injustice  of  the  common  law.  It  is 
undoubtedly  true  that  a  court  of  equity  no  longer  inaug-u- 
rates  new  attacks  upon  legal  doctrines,  and  confines  itself 
to  the  application  of  principles  already  settled;  but  it  is 
none  the  less  true  that  a  large  part  of  the  equity  which  is 
daily  administered  consists  in  doctrines  which  modify  and 
contradict  as  well  as  supplement  the  rules  of  the  law.2 

§  55.  Sources  from  Which  the  Early  Chancellors  Took 
Their  Doctrines. — Having  thus  described  the  action  of  the 
early  chancellors  in  the  formative  period  of  their  juris- 
diction, I  shall  now  endeavor  to  explain  the  motives  by 
which  they  were  governed,  and  the  speculative  sources 
whence  they  drew  their  principles  and  constructed  their 
doctrines.  They  were  directed  in  their  original  delega- 
tion of  authority,  and  they  assumed,  in  compliance  with  the 
direction,  to  proceed  according  to  Equity  and  Conscience. 
There  can  be  no  doubt  that  they  took  their  conception  of 
equity  from  the  general  description  of  it  given  by  the 
Roman  jurists,  understood  and  interpreted,  hoiuever,  ac- 
cording to  their  oivn  theory  of  morality  as  a  Divine  laiu, 
and  also  borrowed  many  of  the  particular  rules  by  which 
this  equity  was  applied  from  the  Roman  law.  As  the  great 
Roman  jurists,  disciples  of  the  Stoic  philosophy,  conceived 
of  jEquitas  as  synonymous  with  the  *' natural  law,"  or  ''lex 
naturce/'  the  governing  spirit  or  reason  of  the  universe 
{ratio  mundi),  and  regarded  it  as  a  constituent  part  of 

§  54,  2  See  dictum  of  Sir  George  Jessel,  M.  R.,  in  Johnson  v.  Crook, 
L.  R.  12  Ch.  Div.  639,  649,  quoted  jmst,  in  note  to  §  62. 


61  THE    XATUEE    OF    EQUITY.  §  56 

their  national  system,  so  the  clerical  chancellors,  interpret- 
ing the  language  of  the  Roman  jurists  according  to  their 
own  Christian  philosophy,  conceived  of  equity  as  synony- 
mous with  the  Divine  law  of  morality,  and  therefore  as 
compulsory  upon  human  tribunals  in  their  work  of  adjudi- 
cating upon  the  civil  rights  and  regulating  the  personal 
conduct  and  relations  of  individuals.  In  this  view,  the 
authority  and  duty  to  decide  according  to  equity  (as  dis- 
tinguished from  conscience)  seems  to  have  embraced  all 
those  cases  in  which  a  party,  without  having  committed 
any  act  which  would  be  considered  as  contrary  to  conscience 
or  good  faith,  might  yet,  by  the  rigorous  provisions  of  the 
positive  law,  or  by  its  silence, — the  particular  case  not  hav- 
ing been  provided  for  at  all, — have  obtained  an  advantage 
which  it  was  contrary  to  the  principles  of  equity  that  he 
should  be  permitted  to  enforce  or  to  retain.  In  such  cases, 
the  general  principles  of  equity,  which  were  found  in  the 
rules  of  morality,  and  were  superior  to  all  merely  human 
law,  were  invoked.  If  the  rigor  of  the  law  favored  the 
position  of  a  party  who  had  committed  any  unconscientious 
act  or  breach  of  good  faith,  the  one  who  had  suffered 
thereby  would  be  relieved  under  the  head  of  ''conscience" 
as  well  as  of  ''equity."  ^ 

§  56.  The  conception  of  "Conscience"  as  an  element  in 
determining  jural  relations  was  wholly  due  to  the  clerical 
courts.  In  its  practical  operation  and  results,  however, 
conscience,  considered  as  a  source  of  the  equity  jurisdic- 
tion, was  synonymous  with  the  "good  faith,"  ''bona  fides," 
which  forms  so  important  a  feature  in  the  later  and  philo- 
sophical Roman  jurisprudence.  It  embraced  all  those  obli- 
gations which  rested  upon  a  person  who,  from  the  circum- 
stances in  which  he  was  placed  towards  another  and  the 
relations  subsisting  between  them,  was  bound  to  exercise 
good  faith  in  his  conduct  and  dealings  with  that  other  per- 
son.    Under  the  head  of  conscience  as  thus  understood,  a 

§  55,  1  See  1  Spence's  Eq.  Jur.,  pp.  412,  413. 


§  57  EQUITY    JURISPRUDENCE.  62 

wide  field  of  jurisdiction  was  opened,  wliicli  included  all 
departures  from  honesty  and  uprightness.^ 

j  §  57.  The  question  is  naturally  suggested,  whether  this 
** conscience"  was  interpreted  as  the  personal  conscience 
of  the  individual  chancellor,  or  whether  it  was  a  kind  of 
judicial  conscience,  limited  by  and  acting  according  to 
definite  rules,  and  constituting  a  fixed  and  common  stand- 
ard of  right  recognized  and  followed  by  all  the  equity 
judges.  Beyond  a  doubt,  during  the  infancy  of  the  juris- 
diction, the  former  of  these  conceptions  was  the  prevailing 
one,  and  each  Chancellor  was  governed  in  his  judicial  work 
by  his  own  notions  of  right,  good  faith,  and  obligation,  by 
his  own  interpretation  of  the  Divine  code  of  morality. 
Even  during  the  reigns  of  Henry  VIII.  and  of  Elizabeth, 
some  of  the  chancellors  seem  to  have  taken  a  view  of  their 
authority  which  freed  them  from  the  restraints  of  prece- 
dent and  even  of  principle,  and  enabled  them  to  decide 
according  to  their  private  standard  of  right.  It  was  this 
mistaken  theory,  so  satisfying  to  an  ambitious  and  self- 
reliant  judge,  but  so  dangerous  to  the  equable  and  certain 
administration  of  justice,  which  provoked  the  sarcastic 
criticism  of  Selden  so  often  quoted,  and  so  often  applied, 
in  complete  ignorance  either  of  the  subject  or  the  occasion, 
to  the  equity  jurisdiction  in  general.  ^  After  the  period  of 
infancy  was  passed,  and  an  orderly  system  of  equitable 
principles,  doctrines,  and  rules  began  to  be  developed  out 
of  the  increasing  mass  of  precedents,  this  theory  of  a  per- 

§  56,  1  See  1  Spence's  Eq.  Jur.,  p.  411. 

§  57,  1  Table  Talk,  tit.  Equity :  "Equity  is  a  rogaiish  thing.  For  law 
we  have  a  measure,  and  know  what  we  trust  to.  Equity  is  according  to 
the  conscience  of  him  that  is  Chancellor;  and  as  that  is  larger  or  naiTower, 
so  is  equity.  'T  is  all  one  as  if  they  should  make  his  foot  the  standard 
for  the  measure  we  call  a  Chancellor's  foot.  What  an  uncertain  measure 
would  this  be!  One  Chancellor  has  a  long  foot,  another  a  short  foot,  a 
third  an  indifferent  foot.  'T  is  the  same  thing  in  the  Chancellor's  con- 
science." Mr.  Spence  very  truly  remarks:  "Selden,  better  than  any  man 
living,  perhaps,  knew  what  equity  really  was." 


6o  THE    NATURE    OF    EQUITY.  §  58 

sonal  conscience  was  abandoned;  and  tlie  ''conscience" 
which  is  an  element  of  the  equitable  jurisdiction  came  to 
be  regarded,  and  has  so  continued  to  the  present  day,  as 
a  metaphorical  term,  designating  the  common  standard 
of  civil  right  and  expediency  combined,  based  upon  gen- 
eral principles  and  limited  by  established  doctrines,  to 
which  the  court  appeals,  and  by  which  it  tests  the  conduct 
and  rights  of  suitors, — a  juridical  and  not  a  personal  con- 
science.^-  This  theory  was  at  length  announced  by  Lord 
Nottingham  as  the  one  which  regulated  the  equity  jurisdic- 
tion: ''"With  such  a  conscience  as  is  only  naturalis  and  in- 
terna, this  court  has  nothing  to  do;  the  conscience  by  which 
I  am  to  proceed  is  merely  civilis  and  politica,  and  tied  to 
certain  measures.  "^ 

§58.  After  "conscience"  became  thus  defined  as  a 
common  civil  standard,  it  was  practically  the  same  as 
"equity";  the  distinctions  between  them  had  disappeared, 
and  both  terms  were  and  have  since  been  used  interchange- 
ably. From  the  time  of  Henry  VI.,  precedents  of  decisions 
made  in  the  Court  of  Chancery  were  recorded  in  the  Year- 
Books,  and  special  collections  of  them  were  made  in  the 
reigns  of  Elizabeth,  James  I.,  and  Charles  I.  By  the  time 
of  Charles  I.  the  number  of  precedents  had  so  accumulated, 
either  in  published  or  in  private  collections,  or  handed 
down  traditionally,  that  they  substantially  contained  the 
entire  principles  of  equity,  and  the  chancellors  yielded 
almost  wholly  to  their  guidance.  In  fact,  they  sometimes 
fell  into  the  mistake  of  refusing  relief  in  a  case  plainly 
within  the  scope  of  established  principles,  because  there 
was  no  precedent  which  exactly  squared  with  the  facts  in 
controversy. 

§  57,  2  Cook  V.  Fountain,  3  Swanst.  585,  600    (1676). 

§57,   (a)   The    text    is    quoted    in  N.   E.   442,   by   Parker,    C.   J.     This 

Eoberson  v.  Rochester  Folding  Box  paragraph  is  cited  in  International 

Co.,  171  N.  Y.  538,  546,  89  Am.  St.  Paper  Co.  v.  Bellows  Falls  Canal  Co., 

Eep.   828,   832,   59  L.  R.  A.   478,   G4  SS   Vt.   93,   90   Atl.   943. 


§  59  EQUITY    JURISPRUDENCE.  64 

§  59.  Equity  Finally  Established  upon  a  Basis  of  Settled 
Principles. — The  result  of  this  review  is  very  clear,  and 
enables  us  to  define  with  accuracy  the  general  character 
of  'the  English  and  American  equity.  After  its  growth  had 
proceeded  so  far  that  its  important  principles  were  all  de- 
veloped, equity  became  a  system  of  positive  jurisprudence, 
peculiar  indeed,  and  differing  from  the  common  law,  but 
founded  upon  and  contained  in  the  mass  of  cases  already 
decided.  The  Chancellor  was  no  longer  influenced  by  his 
own  conscience,  or  governed  by  his  own  interpretation  of 
the  Divine  morality.  He  sought  for  the  doctrines  of  equity 
as  they  had  already  been  promulgated,  and  applied  tliem 
to  each  case  which  came  before  him.  No  doubt  (and  this 
is  a  point  of  the  highest  importance)  the  system  was,  and 
is,  much  more  elastic  and  capable  of  expansion  and  exten- 
sion to  new  cases  than  the  common  law.  Its  very  central 
principles,  its  foundation  upon  the  eternal  verities  of  right 
and  justice,  its  resting  upon  the  truths  of  morality  rather 
than  upon  arbitrary  customs  and  rigid  dogmas,  necessarily 
gave  it  this  character  of  flexibility,  and  permitted  its  doc- 
trines to  be  enlarged  so  as  to  embrace  new  cases  as  they 
constantly  arose.  It  has,  therefore,  as  an  essential  part 
of  its  nature,  a  capacity  of  orderly  and  regular  growth, — 
a  growth  not  arbitrary,  according  to  the  will  of  individual 
judges,  but  in  the  direction  of  its  already  settled  principles. 
It  is  ever  reaching  out  and  expanding  its  doctrines  so  as 
to  cover  new  facts  and  relations,  but  still  without  any  break 
or  change  in  the  principles  or  doctrines  themselves.  It 
is  certainly,  therefore,  a  mistaken  theory  which  is  main- 
tained by  many  writers  like  Blackstone,  and  even  by  those 
of  a  later  day  and  higher  authority,  and  which  represents 
the  English  and  American  equity  as  entirely  an  artificial 
system,  embodied  wholly  in  unyielding  precedents,  and 
incapable  of  further  development.  It  is  true  that  there 
can  be  no  more  capricious  enlargement  according  to  the 
will  of  individual  chancellors;  but  the  principles  of  right, 
justice,  and  morality,  which  were  originally  adopted,  and 


65  THE    NATURE    OF    EQUITY.  §  60 

have  ever  since  remained,  as  tlie  central  forces  of  equity, 
gave  it  a  necessary  and  continuous  power  of  orderly  ex- 
pansion, which  cannot  be  lost  until  these  truths  themselves 
are  forgotten,  and  banished  from  the  courts  of  chancery.^  * 

§  60.  The  general  language  of  some  writers,  and  par- 
ticularly of  Blackstone,  presents  an  erroneous  theory  as 
to  the  office  of  precedents  in  equity,  and  if  followed,  would 
check  and  abridge  the  beneficent  operation  of  its  jurisdic- 

§  09,  1  Tlie  dootrine  of  the  text  was  clearly  stated  by  Lord  Redesdale, 
in  Bond  v.  Hopkins,  1  Sehoales  &  L.  413,  429 :  "There  are  eertam  prin- 
ciples on  wliich  courts  of  eqnity  act,  which  are  very  well  settled.  The  cases 
which  occur  are  various,  but  they  are  decided  on  fixed  principles.  Coui'ts 
of  equity  have  in  this  respect  no  more  discretionary  power  than  courts  of 
common  law.  They  decide  new  cases  as  they  arise,  by  the  principles  on 
which  former  eases  have  been  decided,  and  may  thus  illustrate  or  enlarge 
the  operation  of  these  principles,  but  the  principles  are  as  fixed  and  certain 
as  the  principles  on  which  the  courts  of  common  law  proceed."  In  Gee 
v.  Pritchard,  2  Swanst.  402,  414,  Lord  Eldon  states  the  same  theory :  "The 
doctrines  of  this  court  ought  to  be  as  well  settled  and  made  as  uniform 
almost  as  those  of  the  common  law,  laying  down  fixed  principles,  hut  talcing 
care  that  they  are  to  he  applied  according  to  the  circumstances  of  each 
particular  case."  The  old  case  of  Fry  v.  Porter,  1  Mod.  300,  307  (22  Car. 
II.),  exhibits  the  strange  notions  concerning  equity  then  held  by  the 
common-law  judges.  On  the  hearing,  Chief  Justice  Keylinge,  Chief  Jus- 
tice Vaughan,  and  Chief  Baron  Hale  wei-e  called  in  to  assist.  During 
the  argument  C.  J.  Keylinge  cited  an  old  case;  at  which  C.  J.  Vaughan 
said :  "I  wonder  to  hear  of  citing  precedents  in  matter  of  equity,  for  if 
there  be  equity  in  a  case,  that  equity  is  a  universal  truth,  and  there  can 
be  no  precedent  in  it,  so  that  in  any  precedent  that  can  be  produced,  if  it 
be  the  same  with  this  case,  the  reason  and  equity  is  the  same  in  itself; 
and  if  the  precedent  be  not  the  same  case  with  this,  it  is  not  to  be  cited." 
To  this  Lord  Keeper  Bridgman  replied:  "Certainly,  precedents  ai'e  very 
necessary  and  useful  to  us,  for  in  them  we  may  find  the  reasons  of  the 
equity  to  guide  us;  and  besides,  the  authority  of  those  w4io  made  them 
is  much  to  be  regarded.  We  shall  suppose  that  they  did  it  upon  great 
consideration  and  weighing  of  the  matter,  and  it  would  be  veiy  strange  and 
very  ill  if  we  should  disturb  and  set  aside  what  has  been  the  course  for  a 
long  series  of  time  and  ages." 

§  59,   (a)   The     text     is     cited     in       251,   138   Pac.   442,   dissenting   opin- 
Fagan   T.   Troutman,    25    Colo.   App.       ion. 
1—5 


§  60  EQUITY    JURISPRUDENCE.  66 

tion.  The  true  function  of  precedents  is  that  of  illustrat- 
ing principles ;  they  are  examples  of  the  manner  and  extent 
to  which  principles  have  been  applied;  they  are  the  land- 
marks by  which  the  court  determines  the  course  and  direc- 
tion in  which  principles  have  been  carried.  But  with  all 
this  guiding,  limiting,  and  restraining  efficacy  of  prior  de- 
cisions, the  Chancellor  always  has  had,  and  always  must 
have,  a  certain  power  and  freedom  of  action,  not  possessed 
by  the  courts  of  law,  of  adapting  the  doctrines  which  he 
administers.  He  can  extend  those  doctrines  to  new  rela- 
tions, and  shape  his  remedies  to  new  circumstances,  if  the 
relations  and  circumstances  come  within  the  principles  of 
equity,  where  a  court  of  law  in  analogous  cases  would  be 
powerless  to  give  any  relief.  In  fact,  there  is  no  limit  to 
the  various  forms  and  kinds  of  specific  remedy  which  he 
may  grant,  adapted  to  novel  conditions  of  right  and  obli- 
gation, which  are  constantly  arising  from  the  movements 
of  society.^  "While  it  must  be  admitted  that  the  broad  and 
fruitful  principles  of  equity  have  been  established,  and  can- 
not be  changed  by  any  judicial  action,  still  it  should  never 
be  forgotten  that  these  principles,  based  as  they  are  upon 
a  Divine  morality,  possess  an  inherent  vitality  and  a  capa- 
city of  expansion,  so  as  ever  to  meet  the  wants  of  a  pro- 
gressive civilization.  Lord  Hardwicke,  who  was,  I  think, 
the  greatest  of  the  English  chancery  judges,  and  who,  far 
more  than  Lord  Eldon  was  penetrated  by  the  genius  of 
equity,  indicated  the  true  theory  in  a  letter  to  Lord  Karnes : 
''Some  general  rules  there  ought  to  be,  for  otherwise  the 
great  inconvenience  of  jus  vaguni  et  incertum  will  follow. 
And  yet  the  Praetor  [Chancellor]  must  not  be  so  absolutely 
and  invariably  bound  by  them  as  the  judges  are  by  the 
rules  of  the  common  law.     For  if  he  were  so  bound,  the 

§  60,   (a)   This  paragraph  ia  cited,  boldt   Savings  Bank  V:   McCleverty, 

to  the  effect  that  equity  may  so  mold  161    Cal.   285,   119  Pac.   82;    and  in 

and  adjust  its   decree   as  to   award  Fagan   v.   Troutman,   25   Colo.   App. 

substantial  justice  according  to  the  251,  138  Pac.  442,  dissenting  opinion, 
requirements  of  the  case,  in   Hum- 


67  THE    NATURE    OF    EQUITY.  §  Gl 

consequence  would  follow  that  lie  must  sometimes  pro- 
nounce decrees  which  would  be  materially  unjust,  since  no 
rule  can  be  equally  just  in  the  application  to  a  whole  class 
of  cases  that  are  far  from  being  the  same  in  every  cir- 
cumstance.i 

§  61.  I  have  thus  far  described  the  growth  of  equity, 
and  the  shape  which  it  finally  assumed  in  the  English  Mu- 
nicipal Law,  and  as  it  was  thence  borrowed  by  the  Ameri- 
can states,  with  but  little  reference  to  judicial  opinions.  I 
have  supplied  this  intentional  omission  by  collecting  in  the 
foot-note  a  number  of  extracts  in  which  eminent  judges 
have  expressed  their  conceptions  of  its  nature.  Some  of 
these  judges  have  attempted  to  place  the  subject  upon  a 
broad  and  secure  foundation.  While  there  is  a  general 
unanimity  in  their  views,  it  is  still  impossible  to  reconcile 
all  the  judicial  opinions,  and  some  of  them  maintain  a 
theory  of  the  jurisdiction  which  is  certainly  too  partial 
and  restricted.^ 

§  60,  1  Parke's  Histoi-y  of  Chancery,  pp.  501,  506.  Judge  Story  severely 
criticises  this  language,  pronounces  it  very  loosely  said,  and  virtually 
repudiates  it.  But  with  all  deference  to  Judge  Story,  these  few  sentences, 
although  undoubtedly  not  written  in  a  scientific  form,  contain  the  central 
truth  of  the  system,  the  truth  which  must  always  be  recognized  and  acted 
upon  in  the  administration  of  equity.  Lord  Hardwicke  does  not  deny  the 
existence  nor  the  necessity  of  general  principles, — no  other  Chancellor  was 
ever  more  governed  in  his  judicial  work  by  principles, — but  he  would 
guard  against  the  theoi-y  which  locks  these  principles  up  in  the  already 
existing  precedents,  and  limits  their  free  application  to  facts,  circum- 
stances, and  relations  similar  to  those  which  had  been  the  subject-matter 
of  former  adjudications.  In  other  words.  Lord  Hardwicke  in  this  short 
passage  states  the  same  view  which  I  had  given  in  the  text.  Although 
equity  is  and  long  has  been  in  eveiy  sense  of  the  word  a  system,  and 
,  although  it  is  impossible  that  any  new  general  principles  should  be  added 
to  it,  yet  the  truth  stands,  and  always  must  stand,  that  the  final  object  of 
equity  is  to  do  right  and  justice. 

§  61,  1  In  Cowper  v.  Cowper,  2  P.  Wms.  720,  753,  Sir  Joseph  Jekyl, 
M.  R.,  defined  the  scope  and  powers  of  equity  as  follows:  "The  law  is 
clear,  and  courts  of  equity  ought  to  follow  it  in  their  judgments  concerning 
titles  to  equitable  estates;  othenvise  great  uncertainty  and  confusion  would 


§  62  EQUITY    JURISPRUDENCE.  68 

§  62.  How  the  Equitable  Jurisdiction  is  Detennined  at 
the  Present  Day. — Although  the  jurisdiction  of  chancery 
was  originally  based  in  great  measure  upon  the  omissions 
of  the  common  law,  the  injustice  of  many  of  its  rules,  and 
its  inabilit}",  from  its  modes  of  procedure,  to  grant  the 
variety  of  remedies  adequate  to  the  wants  of  society  and 
the  demands  of  justice,  yet  since  the  equitable  system  has 
become  fully  established,  and  its  principles  settled,  this 
origin  of  the  jurisdiction  is  no  longer  regarded  as  furnish- 
ing the  real  criterion.     The  whole  question  by  which  the 

ensue.  And  though  proceedings  in  equity  are  said  to  be  secundum  discre- 
tionem  boni  viri,  yet  when  it  is  asked,  Vir  bonus  est  quis?  the  answer  is, 
Qui  consulta  patrum,  qui  leges  juraque  servat.  (Who  is  the  good  man? 
He  who  maintains  the  opinions  of  his  predecessors,  and  the  laws  and 
decisions.)  And  it  is  said  in  Rook's  Case,  5  Coke,  99b,  that  discretion  is  a 
science  not  to  act  arbitrarily,  according  to  men's  wills  and  private  affections. 
So  the  discretion  which  is  executed  here  is  to  be  governed  by  the  rules 
of  law  and  equity,  which  are  not  to  oppose,  but  each  in  its  turn  to  be 
subservient  to,  the  other.  This  disci'etion,  in  some  cases,  follows  the  law 
implicitly ;  in  others,  assists  it  and  advances  the  remedy ;  in  others,  again,  it 
relieves  against  the  abuse,  or  allays  the  rigor  of  it;  but  in  no  case  does  it 
contradict  or  overturn  the  grounds  or  principles  thereof,  as  has  been  some- 
times ignorantly  imputed  to  this  court.  That  is  a  discretion ai*y  power 
which  neither  this  nor  any  other  court,  not  even  the  highest,  acting  in 
a  judicial  capacity,  is  by  the  constitution  entrusted  with."  This  language 
was  expressly  adopted  and  approved  by  Sir  Thomas  Clarke,  M.  R.,  in 
Burgess  v.  Wheate,  1  W.  Black.  123,  152.  The  general  propositions  at 
the  beginning  of  this  extract  are  undoubtedly  correct;  but  it  is  strange 
that,  in  the  face  of  the  equitable  doctrines  concerning  uses  and  trusts, 
or  the  separate  estates  of  married  women,  or  the  enforcing  of  contracts 
void  by  the  statute  of  frauds,  or  the  relief  anciently  given  to  an  obligor 
who  had  paid  the  debt  without  taking  a  release,  and  numerous  other 
instances,  some  of  which  have  been  mentioned  in  the  text, — it  is  strange, 
I  say,  in  the  face  of  all  these  facts,  that  an  equity  judge  could  lay  down 
a  proposition  so  palpably  untrue  as  the  one  just  quoted,  that  in  no  case 
does  equity  contradict  or  overturn  the  grounds  and  principles  of  the 
law;  a  gi-eat  part  of  its  doctrines  being  in  direct  contradiction  to  the 
rules  of  law  governing  the  same  circumstances  at  the  time  when  these 
doctrines  were  first  enunciated.  Lord  Hardwicke,  who  always  looked  at 
the  reality,  and  not  at  mere  conventional  formulas,  stated  the  true  relation 
between   equity   and   the   law   in   a  short   but   pregnant   proposition.     It 


69  THE  NATURE  OF  EQUITY.  §  62 

extent  of  the  equity  jurisdiction  is  practically  determined 
is  no  longer,  whether  the  case  is  omitted  by  the  law,  or 
the  legal  rule  is  unjust,  or  even  the  legal  remedy  is  in- 
adequate,— although  the  latter  inquiry  is  still  sometimes 
made  and  treated  as  though  it  were  controlling, — the  ques- 
tion is,  rather,  whether  the  circumstances  and  relations 
presented  by  the  particular  case  are  fairly  embraced  within 
any  of  the  settled  principles  and  heads  of  jurisdiction 
which    are   generally    acknowledged    as    constituting    the 

being  argued  in  a  case  before  him  that  equity  follows  the  law,  JEquitas 
sequitur  legem,  he  replied:  "When  the  court  finds  the  rules  of  the  law 
right  it  will  follow  them ;  but  then  it  will  likewise  go  bej'ond  them" :  Paget 
V.  Gee,  Ambl.  App.  807,  810.  In  the  ease  of  Manning  v.  Manning,  1 
Johns.  Ch.  530,  Chancellor  Kent  explained  his  own  position  as  an  Amer- 
ican chancellor,  and  his  conception  of  equity  as  a  whole :  "I  take  this 
occasion  to  observe  that  I  consider  myself  bound  by  these  principles, 
which  were  known  and  established  as  law  in  the  courts  of  equity  in 
England  at  the  time  of  the  institution  of  this  court,  and  I  shall  certainly 
not  presume  to  strike  into  any  new  path  with  visionary  schemes  of  inno- 
vation and  improvement;  Via  antiqua  via  est  tuta.  .  .  .  This  court  ought 
to  be  as  much  bound  as  a  court  of  law  by  a  course  of  decisions  applicable 
to  the  ease,  and  establishing  a  ri;le.  As  early  as  the  time  of  Lord  Keeper 
Bridgman,  it  was  held  that  precedents  were  of  authority  (1  Mod.  307. 
See  the  citation  ante,  in  the  note  under  §59).  The  system  of  equity 
principles  which  has  grown  up  and  become  matured  in  England,  and 
chiefly  since  Lord  Nottingham  was  appointed  to  the  custody  of  the  gi-eat 
seal,  is  a  scientific  system,  being  the  result  of  the  reason  and  the  labors 
of  learned  men  for  a  succession  of  ages.  It  contains  the  most  enlarged 
and  liberal  views  of  justice,  with  a  mixture  of  positive  and  technical 
rules  founded  in  public  policy,  and  indispensable  in  every  municipal 
code.  It  is  the  duty  of  this  court  to  apply  the  principles  of  this  system 
to  individual  cases  as  they  may  arise,  and  by  this  means  endeavor  to 
transplant  and  incorporate  all  that  is  applicable  in  that  system  into  the 
body  of  our  own  judicial  annals,  by  a  series  of  decisions  at  home."  The 
propositions  here  quoted  are  undoubtedly  true,  and  yet  the  feeling  can- 
not be  avoided  that  they  do  not  represent  the  entire  truth.  The  character 
of  Chancellor  Kent's  mind  was  eminently  conservative;  and  this  con- 
servative tendency  has  led  him  to  suppress,  or  at  least  to  refrain  from 
expressing,  the  element  of  vitality  and  expansion  which  inheres  in  the 
system,  and  the  power  of  the  court  in  its  fullness  to  enlarge  the  equitable 
])rinciples,  to  extend  them  over  new  facts  and  relations,  and  to  render 
them  fruitful  in  the  constant  production  of  new  rules. 


§  62  EQUITY    JURISPRUDENCE.  70 

department  of  equity.^^  Two  results  therefore  follow: 
First,  a  court  of  equity  will  not,  unless  perhaps  in  some 
very  exceptional  case,  assume  jurisdiction  over  a  contro- 
versy the  facts  of  which  do  not  bring  it  within  some  general 
principle  or  acknowledged  head  of  the  equitable  jurispru- 
dence; and  secondly,  if  the  circumstances  do  bring  the  case 
within  any  of  these  principles  or  heads,  a  jurisdiction  over 
it  will  be  maintained,  although  the  law  may  have  been  so 
altered  by  judicial  action  or  by  positive  legislation  that  it 
has  supplied  the  original  omission,  or  has  brought  the  legal 

§  62,  1  The  position  which  I  maintain  is  well  illustrated  by  a  dictum 
of  Jessel,  M.  R., — one  of  the  most  clear-headed  and  able  judges  of  this 
generation, — in  the  recent  ease  of  Johnson  v.  Crook,  L.  R.  12  Ch.  Div. 
639,  649.  He  is  discussing  the  question  whether  a  certain  rule  of  equity 
jurisprudence  had  been  established,  and  has  cited  a  series  of  decisions 
to  show  that  it  had  not  been  established,  but  that  the  contrary  rule  had 
been  acted  upon.  He  then  adds :  "Having  examined  all  the  authorities, 
I  cannot  find  a  trace  of  it  (i.  e.,  the  rule  in  question)  before  the  case 
I  am  about  to  mention,  and  therefore  if  there  is  such  a  law  it  must  have 
been  made  in  the  year  1866.  Now,  it  could  only  have  been  made  in  the 
year  1866  by  statute,  because  in  the  year  1866  equity  judges  did  not 
profess  to  make  new  law,  and  when  they  state  what  the  law  is,  they  do 
not  mean,  as  might  have  been  said  two  or  three  centuries  before,  that 
that  was  law  which  they  thought  ought  to  be  law."  To  avoid  a  mis- 
understanding of  this  position,  it  must  be  remembered  that  I  am  speaking 
of  the  equity  system  as  a  whole,  as  it  exists  in  England,  and  in  those 
American  states  which  have  clothed  their  courts  with  the  entire  equitable 
jurisdiction  of  the  chancery.  In  several  of  the  states,  a  partial  jurisdic- 
tion only  has  been  gi-anted,  and  it  is  by  the  express  language  of  the 
statutes  restricted  to  those  cases  in  which  an  adequate  remedy  cannot  be 
obtained  at  law.  In  giving  a  construction  to  this  legislation,  the  ques- 
tion whether  the  legal  remedy  is  adequate  becomes  of  great  practical 
importance.  This  subject,  as  to  the  extent  of  the  jurisdiction,  which  is 
here  merely  alluded  to,  will  be  fully  examined  in  a  subsequent  chapter. 

§  62,   (a)   The  text   is  quoted   and  peal,  72  N.  J.  E'q.  910,  14  L.  K.  A. 

followed  in  the  interesting  case  of  (N.  S.)  30-1,  67  Atl.  97;  quoted,  also, 

Vanderbilt  v.  Mitchell,  71  N.  .J.  Eq.  in  Wagner  v.  Armstrong,  93  Ohio  St. 

632,  63  Atl.  1107  (no  jurisdiction  to  443,  113  N.  E.  397.     See,  also,  Earle 

cancel  or  correct  a  birth  certificate  v.  American  Sugar  Refining  Co.,  74 

in    which    the    plaintiff    is    falsely  N,  J.  Eq.  751,  71  Atl.  391,  395. 
named   as   father),   reversed   on   ap-  ' 


71  THE  NATQEE  OF  EQUITY.  §  63 

rule  into  a  conformity  with  justice,  or  has  furnished  an 
adequate  legal  remedy.  This  latter  proposition  is  true  as 
the  general  doctrine  concerning  the  extent  of  the  equity 
jurisdiction,  but  its  operation  has  sometimes  been  pre- 
vented, and  the  jurisdiction  itself  denied,  in  such  cases  by 
express  statute.^  ^ 

§  63.  Recapitulation:  Nature  of  Equity  Stated  in  Four 
Propositions. — I  shall  bring  this  examination  into  the  gen- 
eral nature  of  equity  to  an  end  by  formulating  four  dis- 
tinct propositions :  1.  The  moral  law,  as  such,  is  not  an 
element  of  the  human  law.  Whatever  be  the  name  under 
which  it  is  described, — the  moral  law,  the  natural  law,  the 
law  of  nature,  the  principles  of  right  and  justice — this  code, 
which  is  of  divine  origin,  and  which  is  undoubtedly  compul- 
sory upon  all  mankind  in  their  personal  relations,  is  not 
per  se  or  ex  propria  vigore  a  part  of  the  positive  jurispru- 
dence which,  under  the  name  of  the  municipal  law,  each 
independent  state  has  set  for  the  government  of  its  own 
body  politic.  This  truth,  so  simple  and  so  plain,  and  yet 
so  often  forgotten  by  text-writers  and  judges,  removes  at 
once  all  doubt  and  difficulty  from  a  clear  conception  of  the 
positive  human  law,  and  of  its  relations  with  the  higher 
and  divine  law  which  we  call  morality.  Speculative  writers 
upon  the  natural  law  may  well  see  in  it  the  foundation  of 
all  perfected  human  legislation,  and  it  is  not  surprising 
that  they  should  confound  the  two.  It  is  surprising  that 
those  who  treat  of  the  human  jurisprudence  alone,  and 

§  62,  2  In  support  of  tlie  general  doctrine,  see  Shotwell  v.  Smith.  20 
N.  J.  Eq.  79 ;  Segar  v.  Parish,  20  Gratt.  672 ;  Pratt  v.  Pond,  5  Allen,  59 ; 
King  V.  Baldwin,  2  Johns.  Ch.  554;  Cannon  v.  McNab,  48  Ala.  99; 
Collins  V.  Blantern,  2  Wils.  341;  Bromley  v.  Holland,  7  Ves.  19,  21; 
Atkinson  v.  Leonard,  3  Brown  Ch.  218.  But,  per  contra,  see  Ainsley 
V.  Mead,  3  Lans.  116;  HaU  v.  Joiner,  1  Rich.  (N.  S.)  186;  Riopelle  v. 
Doellner,  26  Mich.  102. 

§  62,  (b)  The  text  is  cited  in  quoted  in  Wagner  v.  Armstrong,  93 
Wheeler  v.  Ocker  &  Ford  Mfg.  Co.,  Ohio  St.  443,  113  N.  &.  397  (parti- 
162  Mich.  204,  127  N.  W.  332;   and       tion  is  still  an  equitable  remedy). 


§  64  EQUITY    JURISPRUDENCE.  72 

especially,  those  who  administer  that  jurisprudence,  should 
confound  the  commands  uttered  by  the  divine  Law-giver 
with  those  issued  by  human  law-makers.  It  is  true  that 
many  of  the  precepts  of  this  moral  code  relate  to  man- 
kind considered  as  members  of  an  organized  society, — the 
state, — and  prescribe  the  obligations  which  belong  to  them 
as  component  parts  of  a  national  body ;  and  therefore  these 
precepts  are  jural  in  their  nature  and  design,  and  the 
duties  which  they  impose  upon  individuals  are  of  the  same 
kind  as  those  imposed  by  the  human  authority  of  the  state. 
It  is  also  true  that  human  legislation  ought  to  conform  it- 
self to  and  embody  these  jural  precepts  of  the  moral  code ; 
every  legislator,  whether  he  legislate  in  a  Parliament  or 
on  the  judicial  bench,  ought  to  find  the  source  and  mate- 
rial of  the  rules  he  lays  down  in  these  principles  of  mor- 
ality; and  it  is  certain  that  the  progress  towards  a  per- 
fection of  development  in  every  municipal  law  consists  in 
its  gradually  throwing  off  what  is  arbitrary,  formal,  and 
unjust,  and  its  adopting  instead  those  rules  and  doctrines 
which  are  in  agreement  with  the  eternal  principles  of  right 
and  morality.  But  it  is  no  less  true  that  until  this  work 
of  legislation  has  b'^en  done,  until  the  human  law-giver  has 
thus  borrowed  the  rules  of  morality,  and  embodied  them 
into  the  municipal  jurisprudence  by  giving  them  a  human 
sanction,  morality  is  not  binding  upon  the  citizens  of  a 
state  as  a  part  of  the  law  of  that  state.  In  every  existing 
municipal  law  belonging  to  a  civilized  nation,  this  work  of 
adaptation  and  incorporation  has  been  performed  to  a 
greater  or  less  degree. 

§  64.  2.  Another  very  large  portion  of  the  precepts  of 
morality  are  not  jural  in  their  nature;  they  do  not  relate 
to  mankind  considered  as  forming  a  society,  as  organized 
into  a  state,  but  only  to  individuals,  prescribing  their  per- 
sonal duties  towards  each  other  and  towards  God.  These 
moral  precepts  create  obligations  resting  upon  separate 
persons,  which  the  state  and  human  law  do  not  and  cannot 


73  THE    NATUKE    OF    EQUITY.  §  65 

recognize  or  enforce;  and  they  are  left  to  be  enforced  solely 
by  the  divine  sanction,  acting  in  and  upon  the  conscience 
of  each  person.  Such  obligations  are  often  called  "im- 
perfect," which  is  in  every  point  of  view  a  very  incor- 
rect and  misleading  designation.  Eegarded  as  parts  of 
the  divine  code  of  morals,  and  as  enforced  by  the  divine 
sanction,  they  are  as  ''perfect"  and  binding  as  any  others; 
considered  as  parts  of  human  jurisprudence  to  be  en- 
forced by  human  sanction,  they  are  not  simply  imperfect, 
but  are  absolutely  non-existent;  they  are  no  obligations 
at  all.  With  this  entire  class  of  moral  rules  and  pre- 
cepts the  law  of  the  state  does  not  and  cannot  deal;  they 
do  not  act  within  the  sphere  of  human  legislation ;  they  are 
not  jural  principles.  The  question  then  arises,  Does  the 
system  of  equity  established  in  the  United  States  and  in 
England  contain  all  the  jural  principles  of  morality  which 
have  been  borrowed  and  incorporated  into  the  municipal 
jurisprudence?  The  answer  to  this  inquiry  is  contained 
in  the  two  following  propositions. 

§65.  3.  "Equity"  alone  does  not  embrace  all  of  the 
jural  moral  precepts  which  have  been  made  active  prin- 
ciples in  the  municipal  jurisprudence.  The  "law,"  even 
the  "common  law,"  as  distinct  from  statutory  legislation, 
has  in  the  course  of  its  development  adopted  moral  rules, 
principles  of  natural  justice  and  equity,  notions  of  abstract 
right,  as  the  foundation  of  its  doctrines,  and  has  infused 
them  into  the  mass  of  its  particular  rules.  Unquestionably 
at  an  early  day  the  common  law  of  England  had  compara- 
tively little  of  this  moral  element;  it  abounded  in  arbitrary 
dogmas,  as,  for  example,  the  effect  given  to  the  presence 
or  absence  of  a  seal;  but  this  was  the  fault  of  the  age, 
and  the  sin  was  chiefly  one  of  omission;  the  ancient  law 
was,  after  all,  rather  unmoral  than  immoral.  But  this 
has  been  changed,  and  at  the  present  day  a  large  part  of  the 
"law"  is  motived  by  considerations  of  justice,  based  upon 
notions  of  right,  and  permeated  by  equitable  principles, 


§  G6  EQUITY    JURISPRUDENCE.  74 

as  truly  and  to  as  great  an  extent  as  the  complementary 
department  of  the  national  jurisprudence  which  is  tech- 
nically called  ''equity."  This  work  of  elevating  the  law 
has  been  accomplished  by  two  distinct  agencies,  judicial 
legislation  and  parliamentary  legislation.  At  the  present 
day  the  latter  agency  is  the  most  active  and  by  far  the  most 
productive;  but  prior  to  the  epoch  of  conscious  legal  re- 
form, which  began  in  England  about  1830,  and  at  a  con- 
siderably earlier  day  in  this  country,  the  great  work  of 
legislation  within  the  domain  of  the  private  law,  except  in 
a  few  prominent  instances,  such  as  the  Statute  of  Uses,  of 
Wills,  etc.,  was  done  by  the  law  courts.  In  expanding  the 
law,  the  judges  in  later  times  have  designedly  borrowed 
the  principles  from  the  moral  code,  and  constructed  their 
rules  so  as  to  be  just  and  righteous.  The  legislature  also 
has  conformed  the  modern  statutes  to  the  precepts  of  a 
high  morality,  and  their  legislation  has  tended  to  correct 
any  mistakes  and  to  supply  any  omissions  in  the  body  of 
rules  constructed  by  the  legislative  function  of  the  courts. 

§  66.  While  the  foregoing  description  is  true  of  a  large 
portion  of  the  "law,"  it  is  also  true  that  from  the  very 
necessities  of  the  case  there  is  another  large  part  of  the 
law  which  is  and  must  be  founded  upon  expediency  rather 
than  upon  morality.  The  influence  of  ancient  institutions, 
the  motives  of  policy,  the  primary  importance  of  certainty, 
the  necessity  of  rules  which  shall  correspond  with  the  aver- 
age conduct  of  men, — such,  for  example,  as  many  rules  of 
presumption  which  may  produce  great  wrong  in  particular 
cases, — these  and  other  facts  of  equal  importance  must 
exist  in  every  society,  and  must  prevent  a  determinate  part 
of  its  law  from  being  constructed  upon  a  basis  of  morality, 
and  from  admitting  the  creative  force  of  purely  moral  prin- 
ciples. This  inherent  necessity  of  a  constituent  part  which 
is  arbitrary  and  expedient,  rather  than  just  and  righteous, 
is  a  most  important  distinction  between  the  ''law"  and 
** equity."     The    element,    however,  of  the    English    and 


75  THE    NATURE    OF    EQUITY.  §  66 

American  law,  which  has  operated  by  far  the  most  power- 
fully to  retard  its  development  in  the  direction  of  morality, 
which  has  placed  an  insuperable  barrier  to  its  perfected 
growth,  which  has  rendered  it  incomplete  as  an  embodiment 
of  jural  rights,  unable  to  administer  justice  to  the  citizen 
in  all  his  relations,  and  unequal  to  the  needs  of  society,  has 
been  and  is  its  mode  of  procedure,  its  remedial  system  as 
a  whole.  This  narrow,  technical,  arbitrary  procedure,  ad- 
mitting growth  in  only  one  direction,  granting  but  few 
remedies,  and  incapable  of  enlarging  their  number  or 
changing  their  nature,  was  the  fact  which  more  than  all  else 
made  it  impossible  for  the  "law"  to  borrow  all  the  jural 
precepts  of  the  moral  code,  incorporate  them  into  its  own 
rules,  and  administer  the  full  remedial  justice  which  these 
equitable  principles  demanded.  The  legal  growth  was 
stunted,  its  development  was  checked,  its  tendencies  to  do 
justice  in  all  the  private  relations  of  society  were  thwarted 
by  its  partial  remedies  and  its  imperfect  means  of  admin- 
istering them.  From  this  cause  the  necessity  of  a  distinct 
department  of  equity,  with  its  own  mode  of  procedure,  and 
with  absolute  freedom  and  elasticity  in  the  forms  of  its 
remedies,  and  their  adaptation  to  the  rights  and  duties  of 
parties,  has  continued  to  the  present  day,  and  must  con- 
tinue until  the  principles  and  rules  of  the  common-law 
remedial  system  are  utterly  abandoned.^ 

§  66,  II  quote  the  following  passage  from  Mr.  Snell's  Principles  of 
Equity  (Introd.,  pp.  2,  3),  which  expresses  substantially  the  same  theory 
as  that  given  in  the  text:  "Are  we,  then,  to  infer  that  the  equity  of  our 
Court  of  Chancery  represents  the  residue  of  natural  equity,  or,  to  put  it 
conversely,  the  whole  of  that  portion  of  natural  equity  which  may  be 
enforced  by  legal  sanctions,  and  administered  by  legal  tribunals'?  The 
slightest  acquaintance  with  English  jurisprudence  will  show  us  that  were 
we  to  arrive  at  this  conclusion,  we  should  ignore  the  claims  of  the  common 
law  and  the  statute  law.  Although,  when  we  make  use  of  the  term 
'common  law/  we  use  it  as  contradistinguished  from  equity,  technically 
so  called,  that  circumstance  should  by  no  means  blind  us  to  the  fact 
that  in  the  main  the  common  law  is  a  system  as  much  founded  on  the 
basis  of  natural  justice  and  good  conscience  as  our  equity  system ;  that 


§  G7  EQUITY    JURISPRUDENCE.  76 

§67.  4.  As  the  expansive  tendencies  of  the  common 
law  are  thus  confined  within  certain  limits,  and  as  its  power 
to  administer  justice  and  to  grant  the  variety  of  remedies 
needed  in  the  manifold  relations  of  society  is  incomplete, 
the  English  and  American  system  of  equity  is  preserved 
and  maintained  to  supply  the  want,  and  to  render  the  na- 
tional jurisprudence  as  a  whole  adequate  to  the  social 
needs.  It  is  so  constructed  upon  comprehensive  and  fruit- 
ful principles,  that  it  possesses  an  inherent  capacity  of  ex- 
pansion, so  as  to  keep  abreast  of  each  succeeding  genera- 
tion and  age.  It  consists  of  those  doctrines  and  rules,  pri- 
mary and  remedial  rights  and  remedies,  which  the  common 
law,  by  reason  of  its  fixed  methods  and  remedial  system, 

if  it  has  fallen  short  in  its  operation,  its  failure  is  rather  to  be  attributed 
to  defects  in  the  modes  of  administering  those  principles  than  to  any 
inherent  weakness  or  deficiency  of  the  principles  themselves.  Clearly, 
therefore,  another  large  portion  of  enforceable  equity,  often  enfeebled 
though  it  be  by  a  defective  mode  of  administration,  is  to  be  found  in 
the  common  law.  And  finally,  we  must  look  to  the  enactments  of  the 
legislature,  the  statute  law,  as  embodying  and  giving  legal  sanction  to 
many  of  those  principles  of  natural  equity  Vv'hieh,  though  capable  of 
being  administered  by  courts,  have  been  omitted  to  be  recognized  as  such, 
— an  omission  arising  from  that  tendency  of  all  human  institutions 
founded  on  a  body  of  principles  to  assume  a  defined  and  solidified  mass, 
refusing  to  receive  further  accessions  even  from  a  cognate  source,  and 
thus  to  become  after  a  time  incapable  of  expansion.  Having  thus  mapped 
out  the  whole  area  of  what  is  termed  natural  justice, — having  seen  tliat 
a  large  portion  of  it  cannot  be  enforced  at  all  by  civil  tribunals,  that 
another  large  section  of  it  is  administered  in  courts  of  common  law,  and 
a  third  part  enforced  by  legislative  enactments, — we  are  in  a  position  to 
indicate  approximately  the  province  of  equity,  technically  so  termed. 
Putting  out  of  consideration  all  that  part  of  natural  equity  sanctioned 
and  enforced  by  legislative  enactments,  equity  may  then  be  defined  as 
that  i^ortion  of  natural  justice  which,  though  of  such  a  nature  as  prop- 
erly to  admit  of  its  being  judicially  enforced,  was,  from  circumstances, 
omitted  to  be  enforced  by  common-law  courts, — an  omission  which  was 
supplied  by  the  Court  of  Chancery.  In  short,  the  whole  distinction  be- 
tween equity  and  law  may  be  said  to  be,  not  so  much  a  matter  of  sub- 
stance or  principle  as  of  form  and  histoi-y."  These  concluding  sentences 
hardly  contain  an  adequate  conception  of  the  English  and  American  equity. 


77  THE  NATURE  OF  EQUITY.  §  67 

was  either  unable  or  inadequate,  in  the  regular  course  of 
its  development,  to  establisli,  enforce,  and  confer,  and 
which  it  therefore  either  tacitly  omitted  or  openly  rejected. 
On  account  of  the  somewhat  arbitraiy  and  harsh  nature 
of  the  common  law  in  its  primitive  stage,  these  doctrines 
and  rules  of  equity  were  intentionally  and  consciously 
based  upon  the  precepts  of  morality  by  the  early  chancel- 
lors, who  borrowed  the  jural  principles  of  the  moral  code, 
and  openly  incorporated  them  into  their  judicial  legisla- 
tion. This  origin  gave  to  the  system  which  we  call  equity 
a  distinctive  character  which  it  has  ever  since  preserved. 
Its  great  underlying  principles,  which  are  the  constant 
sources,  the  never-failing  roots,  of  its  particular  rules,  are 
unquestionably  principles  of  right,  justice,  and  morality, 
so  far  as  the  same  can  become  the  elements  of  a  positive 
human  jurisprudence;  and  these  principles,  being  once  in- 
corporated into  the  system,  and  being  essentially  unlimited, 
have  communicated  their  own  vitality  and  power  of  adap- 
tation to  the  entire  branch  of  the  national  jurisprudence  of 
which  they  are,  so  to  speak,  the  substinicture.  It  follows 
that  the  department  which  we  call  equity  is,  as  a  whole, 
more  just  and  moral  in  its  creation  of  right  and  duties 
than  the  correlative  department  which  we  call  the  law.  It 
does  not  follow,  however,  that  the  equity  so  described  is  ab- 
solutely identical  with  natural  justice  or  morality.  On  the 
contrary,  a  considerable  portion  of  its  rules  are  confessedly 
based  upon  expediency  or  policy,  rather  than  upon  any  no- 
tions of  abstract  right. 


§  68  EQUITY   JUKISPRUDENCB.  78 


SECTION  m. 

THE  PRESENT,  RELATIONS  OF  EQUITY  WITH  THE  LAW. 

ANALYSIS. 

§  68.  Importance    of   correctly    understanding   these   present   relations. 

§  69.  Changes  in  the    relations  of  equity  to  the  law  effected  partly  by 
statute   and    partly    by   decisions. 

§§  70-88.  Important   instances   of   such   changes   in   these   relations. 

§  70.  In  legal  rules  concerning  the  effect  of  the  seal. 

§  71.  Ditto  suits  on  lost  instruments. 

§  72.  Ditto  forfeitures   and   penalties. 

§§  73,  74.  Ditto  mortgages    of    land. 

§  75.  In  statutes  concerning  express  trusts. 

§  76.  Ditto  recording  and   doctrine   of  priorities, 

§  77.  Ditto  administration    of    decedents'   estates. 

§  78.  Ditto  jurisdiction   over  infants. 

§§  79,  80.  Ditto  married    women's   property. 

§  81.  In  statutory   restrictions   upon   the   equitable   jurisdiction. 

§§  82,  83.  In  the  practical  abolition  of  the  "auxiliary"  jurisdiction. 

§§  84-88.  In  the  Reformed  Procedure  combining  legal  and  equitable  methods. 

§  68.  Importance  of  Correctly  Understanding  These 
Present  Relations. — In  accounting  for  the  historical  origin 
of  equity,  and  in  describing  its  general  nature,  it  is  neces- 
sary to  go  back  to  the  period  of  its  infancy  and  early 
growth,  when  the  common  law  was  also  in  its  primitive  and 
undeveloped  condition.  We  thus  naturally  form  a  picture 
of  the  two  systems  standing  in  marked  contrast  and  even 
opposition,  acknowledging  different  sources,  controlled  by 
different  principles,  exhibiting  different  tendencies,  each 
complete  in  itself  and  independent  of  the  other.  The  im- 
pression which  is  thus  obtained  of  their  relations  is  too 
apt  to  be  retained  in  describing  the  equity  as  it  has  existed 
at  subsequent  times,  and  even  as  it  exists  at  the  present 
day.  The  effect  of  such  a  tendency  to  confuse  different 
epochs  and  conditions  is  shown  in  some  of  the  treatises 
upon  equity  jurisprudence,  which  tacitly  assume  that  all 
of  the  original  antagonism  still  prevails,  and  which,  ignor- 


79  PRESENT    EELATIONS    OF    EQUITY    WITH    THE    LAW.         §  69 

ing  the  great  and  often  radical  changes  made  in  the  law, 
discuss  their  subject-matter  as  though  the  relations  be- 
tween law  and  equity  continued  to  be  the  same  as  they  were 
in  the  reign  of  Charles  IL,  or  even  later,  in  the  reigns  of 
George  III.  and  George  IV.,  and  under  the  chancellorships' 
of  Lord  Thurlow  and  Lord  Eldon, — as  though  all  the  harsli, 
arbitraiy,  unjust  rules  which  then  disgraced  the  law  re- 
mained unmodified.  Such  neglect  to  appreciate  the  actual 
condition  of  the  law  will  lead  to  the  useless  discussion  of 
equitable  doctrines  which  have  become  obsolete,  since  all 
occasion  for  their  application  has  been  removed,  and  will 
produce,  almost  as  a  matter  of  course,  a  distorted  repre- 
sentation of  equity  as  a  whole.  In  order,  therefore,  to  form 
an  accurate  notion  of  equity,  its  present  relations  with  tlie 
law  must  be  carefully  observed,  and  to  that  end  the  changes 
which  have  been  made  in  the  law  itself,  and  which  have 
modified  those  relations,  must  be  pointed  out  at  every  stage 
of  the  discussion.  Without  undertaking  to  give  an  ex- 
haustive enumeration,  or  any  detailed  description,  I  shall 
simply  mention  some  of  the  most  important  classes  of  al- 
terations which  have  been  made  in  the  law  since  the  prin- 
ciples and  doctrines  of  equity  were  definitely  settled. 

§  69.     Changes  in  the  Relations  of  Equity  to  the  Law. — 

These  changes  have  certainly  been  very  great.  They  have 
been  effected,  first,  by  the  legislative  work  of  the  common- 
law  courts;  and  secondly,  "by  statutory  legislation.  Since 
thft  doctrines  of  equity  began  to  react  upon  the  law,  and 
especially  since  the  impulse  given  by  the  brilliant  career  of 
Lord  Mansfield,  the  common-law  courts  have  consciously 
adopted  and  applied,  as  far  as  possible,  purely  equitable 
notions — not  so  much  the  technical  equity  of  the  Court  of 
Chancery,  but  the  principles  of  natural  justice — in  their 
decision  of  new  cases,  and  in  the  development  of  the  law, 
until  a  large  part  of  its  rules  are  as  truly  equitable  and 
righteous  in  their   nature  as  those    administered   by    the 


^  70  EQUITY   JUEISPRUDENCE.  80 

Chancellor.^  From  time  to  time,  the  legislature  has  inter- 
posed, and  by  occasional  statutes  has  aided  this  work  of 
reform.  During  the  past  generation,  since  about  1830  in 
England,  and  an  earlier  date  in  the  United  States,  this 
legislative  process  of  amendment  has  been  more  constant, 
more  systematic,  and  more  thorough,  extending  to  all  parts 
of  the  law,  and  has  been  the  chief  agency  in  the  work  of 
legal  reform.  The  result  is,  that  many  doctrines  and  rules 
which  were  once  exclusively  recognized  and  enforced  by 
chancery  have  become  incorporated  into  the  law,  and  are 
now,  and  perhaps  long  have  been,  administered  by  the  law 
courts  in  the  decision  of  cases.  In  this  manner,  the  law 
has  been  brought  at  many  points  into  a  coincidence  with 
equity.  .  Nor  has  the  legislative  work  been  confined  to  the 
law;  it  has  largely  acted  upon  the  system  of  equity,  and 
has  brought  that  system  into  a  closer  resemblance,  external 
at  least,  with  the  law.  These  changes  have  naturally  gone 
much  further  in  the  United  States  than  in  England;  the 
law  has  been  more  essentially  altered,  and  equity  itself  has 
been  subjected  to  more  limitations.  The  following  in- 
stances are  taken  from  the  legislation,  statutory  or  judicial, 
of  this  country. 

§  70.  1.  Effect  of  a  Seal. — One  of  the  earliest  instances 
of  equity  breaking  in  upon  the  common  law  was  the  relief 
which  it  gave  to  a  debtor  on  a  sealed  instrument  who  had 
paid  the  debt  in  full,  but  had  neglected  to  obtain  a  release 
or  a  surrender  up  of  the  contract.  The  legal  rule  was,  that 
a  sealed  instrument  could  only  be  discharged  by  another 
instrument  of  as  high  a  character,  or  else  by  a  surrender 
of  it,  so  that  the  creditor  could  not  ''make  profert"  of  it 
in  an  action  at  law.*     Equity  justly  regarded  the  debt  as 

§  69,  (a)  Adoption    of    Equitable  §  70,  (a)  Quoted     and     cited     in 

Principles    l)y    Common-law    Courts.  Lacey  v.  Hutchinson,  5  Ga.  App.  865, 

This  sentence  of  the  text  is  quoted  64  S.   E.   105.     The   opinion  in   this 

in  McCreary  v.  Coggeshall,  74  S.  C.  case  contains  an  interesting  histori- 

42,    7    Ann.    Gas.    693,    7    L.    R.    A.  cal  review  of  the  subject. 
(N.  S.)  433,  53  S.  E.  978  (doctrine 
as  to  merger  of  estates). 


81  PEESENT   RELATIONS    OP   EQUITY    WITH    THE    LAW.         §  70 

the  real  fact,  its  payment  as  a  satisfaction,  and  the  seal  as 
a  mere  form.  It  therefore  relieved  the  debtor  who  had 
thus  paid,  and  against  whom  an  action  at  law  was  brought 
on  the  obligation,  by  restraining  this  action;  and  the  debtor 
was  thus  practically  safe,  although  technically  his  legal  lia- 
bility still  subsisted.  Generalizing  this  particular  rule, 
equity  never  gave  the  consequence  to  a  seal  which  the  com- 
mon law  gave ;  it  always  looked  below  this  mere  form  into 
the  real  relations  of  the  parties,  and  rejected  the  dogma 
that  a  seal  can  only  be  discharged  by  an  act  of  equal  de- 
gree. These  equitable  doctrines  have  been  transferred 
into  the  ''law"  of  the  United  States.  The  special  head  of 
equitable  relief  first  mentioned  has  become  utterly  obso- 
lete, since  the  defense  of  payment  in  such  cases  has  long 
been  admitted  by  the  common-law  courts.  In  most  of  the 
states  all  distinction  between  sealed  and  unsealed  instru- 
ments is  abolished,  except  so  far  as  the  statute  of  limita- 
tions operates  to  bar  a  right  of  action ;  in  others,  the  only 
effect  of  the  seal  upon  executory  contracts  is  to  raise  a 
prima  facie  presumption  of  a  consideration,  while  it  is  still 
required  on  a  conveyance  of  land ;  in  a  very  few,  the  com- 
mon-law rule  is  retained,  which  makes  the  seal  conclusive 
evidence  of  a  consideration.^  By  this  legislation,  all  the 
distinction  between  the  legal  and  the  equitable  doctrines 
concerning  contracts  and  other  rights,  except  those  grow- 
ing out  of  a  conveyance  of  land,  founded  upon  the  presence 

§  70,  1  In  some  states  the  seal  is  only  presumptive  e^ddence  of  a  con- 
sideration: See  New  York,  2  R.  S.  406,  §  77;  Alabama,  Rev.  Code  (1867),- 
p.  526,  §  2632;  Michigan,  Comp.  Laws  (1871),  vol.  2,  p.  1710,  §  90; 
Oregon,  Gen.  Laws  (1872),  p.  258,  §  743;  Texas,  Paseh.  Dig.,  vol.  1,  §  228. 
In  many  states  all  distinction  between  sealed  and  unsealed  instruments  is 
abolished,  and  a  seal  is  never  essential;  See  California,  Civ.  Code,  §  1629; 
Indiana,  2  R.  S.  (G.  &  H.),  p.  180,  §  273;  Iowa,  Rev.  Code  (1873),  p.  383, 
§§2112-2114;  Kansas,  Gen.  Stats.  (1868),  p.  183,  §§6-8;  Kentucky, 
1  R.  S.  (Stanton's),  p.  267,  §§  2,  3;  Nebraska,  Gen.  Stats.  (1873), 
p.  1001;  Tennessee,  Gen.  Stats.  (1871),  §§  1804,  1806;  Texas,  Pasch. 
Dig.,  vol.  1,  §  5087  (on  contracts  and  conveyances  "respecting  real  or 
personal  property"). 
1—6 


§  71  EQUITY    JUEISPRUDENCB.  82 

or  absence  of  the  seal,  has  been  abrogated.  The  equitable 
doctrines,  of  course,  remain,  but  they  have  become  a  part 
of  the  law,  and  no  necessity  remains  of  applying  to  courts 
of  equity  for  their  enforcement.  Even  the  equitable  rule 
permitting  a  sealed  agreement  to  be  modified  or  replaced 
by  subsequent  parol  contract  is  generally  adopted  by  the 
law  courts,  except  in  cases  where  the  statute  of  frauds 
prevents  its  operation.^ 

§  71.  2.  Lost  Instruments. — By  another  ancient  doctrine 
of  the  common  law,  the  creditor  on  a  sealed  instrument 
which  had  been  lost  or  accidentally  destroyed  was  prohib- 
ited from  maintaining  an  action  upon  it,  because  he  could 
not  make  the  ^^profert"  which  the  inflexible  rules  of  the 
legal  procedure  required.  Equity,  disregarding  this  form, 
gave  him  relief  by  enforcing  the  demand.^-  At  a  latter 
day,  when  negotiable  paper  came  into  use,  the  owner  of  a 
bill  or  note  so  drawn  that  it  could  be  negotiated  by  delivery, 
who  had  lost  it,  was  debarred  from  suing  upon  it  at  law, 
because  the  common-law  courts  had  no  means,  according  to 
theii'  rigid  forms  of  procedure,  of  compelling  him  to  indem- 
nify the  defendant  against  a  second  claim  made  by  any 
bona  fide  holder  into  whose  hands  the  paper  might  have 
come.  As  the  Court  of  Chancery  has  such  power,  through 
its  ability  to  shape  its  remedial  processes  so  as  to  meet  any 
new  emergency,  it  acquired  jurisdiction  in  this  class  of 
cases,  and  for  a  long  time  all  suits  upon  such  lost  negotia- 
ble paper  were  necessarily  brought  in  equity.     Both  of 

§  70,  2  See  notes  to  Rees  v.  Berrington,  2  Eq.  Lead.  Cas.  18G7,  1S96 
(4th  Am.  ed.);  Hurlbut  v.  Phelps,  30  Conn.  42;  Headley  v.  Goundry, 
41  Barb.  279 ;  Clark,  v.  Partridge,  2  Pa.  St.  13 ;  4  Pa.  St.  166 ;  Keissel- 
brach  v.  Livingston,  4  Johns.  Ch.  114;  Kidder  v.  Kidder,  33  Pa.  St.  268. 

§  71,   (a)   The  text  is  cited  to  the  cil,  Eoyal  Arcanum,  70  N.  J.  Eq.  607, 

point  that  equity  takes  jurisdiction  61  Atl.  982.     This  paragraph  is  also 

to  give  relief  on  a  sealed  instrument  cited  in  Lacey  v.  Hutchinson,  5  Ga. 

■which  is  lost  or  destroyed  or  which  App.   865,  64   S.  E.   105;   Eeeves  v. 

has  come  into  the  hands  of  the  de-  Morgan,   48  N.   J.   Eq.   415,   21   Atl. 

fendant:  Hoagland  v.  Supreme  Coun-  1040. 


83  PBESENT    RELATIONS    OF    EQUITY    WITH    THE    LAW.         §  72 

these  legal  rules  have  been  changed.  The  courts  of  law 
have  long  been  able  to  entertain  actions  upon  lost  or  de- 
stroyed bonds  and  other  sealed  instruments,  since  the  an- 
cient requirement  of  a  profert  by  the  plaintiff  has  been  ab- 
rogated. Statutes  have  generally  been  enacted  in  the 
American  states  which  permit  actions  at  law  on  lost  nego- 
tiable paper  to  be  brought  by  the  owner,  who  is  simply  re- 
quired, as  a  preliminary  step,  to  execute  and  file  a  bond 
of  indemnity  to  the  defendant. ^  In  this  manner  the  neces- 
sity for  equitable  interference  has  been  removed,  and  all 
such  actions  to  recover  a  money  judgment  upon  lost  obliga- 
tions or  negotiable  instruments  are  brought  in  courts  of 
law  according  to  the  legal  modes  of  procedure.^ 

§72.  3.  Penalties. — Another  most  important  class  of 
changes  in  the  law  consists  in  the  adoption,  to  a  consider- 
able extent,  of  the  equitable  doctrines  concerning  penalties 
and  forfeitures.  The  ancient  common  law  rigidly  exacted 
all  penalties  and  enforced  all  forfeitures  if  the  act  which 
should  prevent  them  was  not  done  at  the  very  time  and  in 
the  precise  manner  stipulated.  Equity  from  the  earliest 
period  of  its  growth  adopted  the  policy  of  relieving  against 
penalties  and  forfeitures,  by  generally  treating  the  time 
of  performance  as  immaterial,  and  a  substantial  conform- 
ity to  the  stipulated  manner  of  it  as  sufficient,  and  by  giving 
to  the  creditor  what  was  justly  and  equitably  his  due,  and 
compelling  him  to  forego  the  surplus  which  he  had  exacted, 
and  which  the  law  permitted  him  to  retain.  These  equi- 
table doctrines  have  to  a  great  extent  been  transferred  into 
the  law  of  the  American  states.  Law  courts  give  judgment 
for  the  amount  really  due,  and  not  for  the  penalty,  and 
often  accept  a  subsequent  performance  without  exacting 
the  forfeiture.     The  most  familiar  example  is  that  of  a 

§71,  1  Examples  of  such  statutes  are,  3  N  Y.  R.   S.,  p.  691,  §§  106, 
lOS   (5th  ed.) ;  Civil  Code  of  Cal.,  §  3137. 

§  71,   (b)    This   paragraph    of   the  text  is   cited  in  Beeves  v.   Morgan,   48 
N.  J.  Eq.  415,  21  Atl.  1040. 


§  73  EQUITY    JUEISPRUDENCB.  84 

bond  with  penalty,  conditioned  for  the  payment  of  a 
smaller  sum  which  represents  the  real  debt.  The  equitable 
doctrine  restricting  the  recovery  to  the  sum  constituting  the 
actual  debt,  with  interest  for  the  delay,  has  been  every- 
where accepted  as  a  settled  rule  of  the  law.  This  modifica- 
tion of  the  common  law  has  generally  been  extended  so  as 
to  include,  all  cases  where  a  penalty  or  forfeiture  has  been 
agreed-  upon  as  security  for  the  payment  of  a  certain  or 
ascertainable  sum  of  money. 

§  73.  4.  Mortgages. —  Intimately  connected  with  the 
equitable  doctrine  relating  to  forfeiture  is  the  remarkable 
change  which  has  been  made  in  the  law  of  the  American 
states  concerning  mortgages  of  land.  Without  attempting 
to  describe  either  the  common  law  or  the  equity  doctrine  as 
to  mortgages,  it  is  sufficient  for  my  present  purpose  to 
,state  very  briefly  their  results.  Under  the  common  law 
and  equity  in  combination,  two  different  kinds  of  interests 
or  estates,  the  legal  and  the  equitable,  are  simultaneously 
held  in  the  mortgaged  premises  by  the  two  parties.  The 
mortgagee  is  the  legal  owner,  and  after  a  default  is  entitled 
to  the  possession  of  the  land ;  he  can  convey  his  estate,  not 
by  an  assignment  of  the  mortgage,  but  by  a  deed  of  the  land 
itself ;  on  his  death  it  descends  to  his  heirs  or  passes  to  his 
devisees,  and  does  not  go  to  his  administrators  or  execu- 
tors; in  short,  he  is  at  law  clothed  with  all  the  rights  and 
powers  of  legal  ownership. ^  On  the  other  hand,  the  estate 
of  the  mortgagor,  after  default,  is  purely  an  equitable  one, 
a  right  to  redeem  the  land  from  the  mortgagee,  his  heirs, 
devisees,  or  grantees,  and  therefore  very  properly  denomi- 
nated ''an  equity  of  redemption."  Equity  regards  this 
interest  of  the  mortgagor  as  the  real  beneficial  estate  in  the 
land,  subject,  however,  to  the  lien  and  encumbrance  of  the 
mortgage,  and  as  such  it  can  descend  to  his  heirs,  pass  to 
his  devisees,  or  be  conveyed  by  deed  to  his  grantees.    Ac- 

§  73,  II  have  assumed  in  this  description  that  the  mortgage  is  in  fee, 
which  is  the  common  case  in  the  United  States. 


85  PRESENT    RELATIONS    OF    EQUITY    WITH    THE    LAW.         §  74 

cording  to  the  equitable  theory,  the  interest  of  the  mort- 
gagee is  simply  a  lien  and  encumbrance  on  the  premises, 
and  not  an  estate  in  the  land  itself.  These  legal  rules,  and 
this  double  ownership  resulting  therefrom,  prevail  in  Eng- 
land, and  are  still  retained  in  most  of  the  New  England 
states  and  in  a  few  of  the  other  commonwealths;  but 
throughout  the  greater  part  of  the  country  a  radical  change 
has  been  made  in  the  law,  and  its  doctrines  as  to  the  re- 
spective rights  and  interests  of  the  mortgagor  and  mort- 
gagee have  been  substantially  conformed  to  those  of  equity. 
I  shall  take  the  law  of  New  York  as  the  type. 

§  74.  In  New  York — and  its  legislation  has  been  sub- 
stantially followed  in  so  many  of  the  states  that  it  may 
fairly  be  said  to  express  the  American  doctrine — there  is 
no  longer  any  double  ownership  nor  any  equitable  estate 
in  the  land;  there  is  one  legal  estate  only,  and  that  belongs 
to  the  mortgagor  until  it  is  cut  off  by  foreclosure  and  sale. 
The  interest  of  the  mortgagee,  under  ordinary  circum- 
stances, is  not  an  estate  of  any  kind  in  the  land ;  he  is  sim- 
ply a  creditor  holding  a  lien  upon  the  mortgaged  premises 
as  security  for  his  debt,  which  lien  he  must  enforce  by  a 
foreclosure  and  sale.^  He  is  not  entitled  to  possession,  and 
cannot  maintain  ejectment  either  against  the  mortgagor  or 
a  stranger.  On  his  death  his  interest  is  wholly  personal 
assets,  and  goes  to  his  administrator  or  executor.  He  can- 
not convey  the  land,  and  his  deed  of  it  could  operate  (if  at 
all)  only  as  an  assignment  of  the  mortgage.  He  can  assign 
the  mortgage  by  mere  delivery;  but  so  completely  is  the 
debt  the  principal  thing  and  the  mortgage  an  incident,  that 
an  assignment  of  the  debt  carries  with  it  the  mortgage 
as  a  collateral,  while  an  assignment  of  the  mortgage  with- 

§74,   (a)   The     text     is     cited     in  also  cited,  to  the  same  point,  in  First 

Tapia  v.  Demartini,  77  Cal.  383,   11  State   Bank   of   Le   Sueur   v.    Sibley 

Am.  St.  Rep.  288,  19  Pae.  641,  to  the  County    Bank,    96    Minn.    456,    105 

point  that  a  trust  may  be  declared  N.  W.   485,  489,  following  Tapia   v. 

in  a  mortgage  by  parol,  since  it  is  Demartini,  and  reviewing  cases. 
not  an  estate  in  land.     The  text  is 


§  75  EQUITY    JURISPRUDENCE.  86 

out  the  debt  is  a  nullity.  On  the  other  hand,  the  mortgagor 
is  the  owner  of  the  entire  legal  estate,  subject  to  the  lien 
and  encumbrance  of  the  mortgage,  until  his  title  is  divested 
by  a  foreclosure  and  sale;  the  term  ''equity  of  redemp- 
tion," when  used  to  designate  his  interest,  is  therefore  a 
complete  misnomer,  productive  only  of  confused  and  mis- 
taken notions.  As  such  owner,  the  mortgagor  can  convey, 
mortgage,  or  devise  the  land,  and  if  he  dies  intestate,  it 
descends  to  his  heirs.  These  rules  no  longer  form  a  part  of 
the  equitable  doctrine  merely ;  they  are,  partly  as  the  results 
of  statutes  and  partly  of  judicial  decision,  rules  of  the  law, 
constantly  recognized  and  enforced  in  all  the  courts  of  com- 
mon-law jurisdiction.!  The  effect  of  these  alterations  in 
the  law  upon  the  equity  jurisdiction  has  certainly  been  very 
great. 

§  75.  5.  Express  Trusts. — Another  important  change  in 
the  relations  between  law  and  equity  has  been  effected  by 
the  statutes  of  many  states  concerning  express  trusts  in 
land.  By  the  English  law,  in  the  absence  of  any  statutory 
restriction,  express  active  trusts  may  be  created  for  all  pos- 
sible purposes,  and  express  passive  trusts  corresponding 
with  all  the  various  legal  estates,  in  fee,  for  life,  for  years, 
in  possession,  and  in  remainder,  as  the  case  may  be.  In 
the  latter  class  of  trusts  the  naked  legal  title  only  is  vested 
in  the  trustee,  while  the  equitable  interest  of  the  beneficiary 
is  the  one  which  possesses  all  the  attributes  of  real  owner- 
ship. The  field  of  equity  jurisdiction  which  these  trust 
estates  presented  has  been  greatly  narrowed  by  the  policy 
of  American  legislation.  The  statutes  of  New  York  and  of 
many  other  states  have  at  one  blow  abolished  all  express 

§  74,  1  For  example,  every  court  of  law  will  recognize  and  enforce  an 
assignment  of  the  debt  and  mortgage  made  by  the  mortgagee;  and  in 
every  such  court,  as  well  as  in  courts  having  jurisdiction  of  probate 
matters,  the  interest  of  the  mortgagee,  upon  his  death,  is  recognized  as 
devolving  upon  his  personal  representatives,  while  that  of  the  mortgagor 
is  treated  as  descending  to  his  heirs  or  as  passing  to  his  devisees. 


87  PRESENT  RELATIONS  OF  EQUITY  WITH  THE  LAW.       §§  76,  77 

passive  trusts,  and  have  restricted  express  active  trusts  to 
a  very  few  specified  objects, ^  declaring  void  all  those  at- 
tempted to  be  created  for  other  purposes.  Even  in  the  iaw. 
cases  where  these  trusts  are  permitted,  the  entire  estate  is 
vested  in  the  trustee;  the  beneficiary  has  no  ownership, 
legal  or  equitable,  in  the  land;  his  sole  interest  is  simply  a 
right  in  equity  to  compel  a  performance  by  the  trustee  of 
the  obligations  created  by  the  trust, — a  right  of  action 
merely,  and  not  an  equitable  estate  of  any  kind  in  the 
subject-matter.  This  great  alteration  in  the  relations  of 
the  law  and  equity  with  respect  to  trusts  in  land  has  neces- 
sarily produced  an  important  effect  upon  the  extent  and 
scope  of  the  equity  jurisdiction  throughout  a  great  part  of 
the  United  States. 

§  76.  6.  Recording  and  Priorities. — The  system  of  re- 
cording conveyances  and  mortgages  of  land  which  univer- 
sally prevails  throughout  this  country  has  greatly  modified 
and  simplified  the  doctrines  of  equity  concerning  notice 
which  affect  titles  to  real  estates.  While  the  fundamental 
principles  with  respect  to  notice  are  unchanged  and  form 
a  part  of  our  own  equitable  jurisprudence,  it  is  not  too 
much  to  say  that  most  of  the  particular  rules  relating  to 
titles  which  have  been  developed  from  these  principles  by 
the  English  Court  of  Chancery  have  little  or  no  application 
in  the  United  States. 

§  77.  7.  Administration. — ^Equity,  in  the  exercise  of  its 
unrestricted  powers,  has  jurisdiction  in  the  matter  of  set- 

§  75,  1  The  following  are  the  objects  for  which  express  active  trusts 
are  generally  permitted  in  the  states  which  have  adopted  this  legislation, 
namely:  1.  To  sell  the  land  for  the  purpose  of  paying  debts;  2.  To  sell, 
mortgage,  or  lease  the  land  for  the  purpose  of  paying  legacies  or  other 
charges  upon  it;  3.  To  hold  and  manage  the  land  for  the  purpose  of 
receiving  its  rents  and  profits  and  applying  them  to  the  use  of  a  bene- 
ficiary; 4.  To  hold  and  manage  the  land  for  the  purpose  of  receiving 
its  rents  and  profits  and  accumulating  them  during  the  minorities  of 
infant  beneficiaries. 


§  77  EQUITY    JURISPRUDENCE;  88 

tliiig  the  personal  estates  of  deceased  persons;  and  in 
England  this  is  undoubtedly  the  most  important  branch  of 
the  equitable  jurisprudence, — a  very  large  proportion  of 
the  suits  brought  in  the  Court  of  Chancery  are  administra- 
tion suits.  The  jurisdiction  may  theoretically  remain  in 
some  of  the  states  which  have  conferred  full  equity  powers 
upon  their  courts ;  it  does  not  even  nominally  exist  in  the 
others ;  and  it  is  practically  unknown  throughout  the  entire 
country.  As  administered  in  England,  this  head  of  juris- 
diction includes  everything  pertaining  to  the  settlement  of 
decedents'  estates,  except  the  probate  of  wills,  and  the 
issue  of  letters  testamentary  and  of  administration;^  and 
there  is  a  considerable  discrepancy  between  the  legal  and 
the  equitable  rules  concerning  the  nature,  distribution,  and 
marshaling  of  assets.  In  the  American  states  these  mat- 
ters are  all  governed  by  statutes,  which  determine  the  na- 
ture and  regulate  the  application  and  distribution  of  assets 
by  fixed  and  certain  rules  binding  alike  upon  all  tribunals. 
Probate  courts  are  established  for  the  settlement  of  dece- 
dents' estates,  and  all  questions  arising  in  the  course  of  ad- 
ministration are  decided  by  them,  to  the  practical  exclusion 
of  the  equity  jurisdiction.^  Equitable  suits  growing  out  of 
pending  administrations  are  still  frequent,  but  they  are 
brought  for  some  special  and  partial  relief,  for  the  con- 
struction of  a  will,  the  determination  of  a  controversy  aris- 
ing with  respect  to  a  particular  legacy,  the  adjustment  of 
conflicting  claims  to  a  particular  fund,  and  the  like.  It  is 
true  that  the  statutory  rules  for  the  settlement  of  estates 
are  largely  based  upon  the  principles  which  had  been  set- 
tled in  equity,  and  that  equitable  doctrines  are  constantly 
enforced  by  the  courts  of  probate ;  but  it  is  no  less  true  that 

§77,   (a)   The    text    is    quoted    in  Cilley,  58  Fed.  977,  986   (proceeding 

Moulton  V.  Smith,   16  R.  I.   126,   27  to  establish  a  will  is  not  a  "suit  in 

Am.  St.  Eep.  728,  12  Atl.  891;  cited,  equity").     The    text    is    cited,    also, 

Toland  v.  Earl,  129  Cal.  148,  79  Am.  in    Cabin    Valley   Min.    Co.    v.    Hall 

St.  Rep.  100,  61  Pac.  914.  (Old.),    1.55    Pac.    570    (jurisdiction 

§  77,  (b)  The  text  is  cited  in  In  re  over  guardians). 


89  PRESENT  RELATIONS  OF  EQUITY  WITH  THE  LAW.       §  §  78,  79 

this  important  head  of  equity  jurisdiction  has  been  greatly 
restricted,  or  even  practically  abandoned,  in  all  the  states. 

§  78.  8.  Infants. — ^Another  branch  of  the  jurisdiction 
equally  familiar  to  the  English  lawyer,  and  equally  un- 
known in  the  United  States,  is  that  over  Infants.  When- 
ever an  infant  succeeds  to  property,  the  English  chancery 
takes  the  management  of  his  person  and  his  estate.  A 
proper  suit  having  been  commenced,  the  court  appoints  a 
guardian  (in  the  absence  of  a  testamentary  appointment), 
and  the  infant  is  thenceforward  a  ''ward  of  the  court," 
under  its  actual  paternal  care.  In  some  of  the  states,  the 
courts  possessing  full  equitable  jurisdiction  have  theoreti- 
cally the  power  to  appoint  a  guardian;  but  even  if  this 
power  should  be  exercised,  the  court  does  not  make  the 
infant  its  ward  and  extend  a  personal  oversight  over  him. 
In  this  matter,  however,  as  in  the  administration  of  dece- 
dents' estates,  the  legislature  has  intervened,  and  the  pro- 
bate courts  practically  appoint  all  guardians,  and  control 
their  official  actions.  Under  their  general  power  in  cases 
of  trust  and  of  accounting,  the  American  courts  of  equity 
may  give  all  proper  relief  to  wards  against  their  guard- 
ians; but  the  peculiar  jurisdiction  over  the  persons  and 
estates  of  infants  possessed  by  the  English  chancery  does 
not,  to  any  extent,  exist  in  the  American  equity  jurispru- 
dence.^ 

§  79.  9.  Married  Women. — One  of  the  most  important 
of  the  alterations  made  in  the  relations  between  law  and 
equity  is  that  caused  by  the  legislation  concerning  married 
women's  property  and  capacity  to  contract.  The  follow- 
ing outline  will  give  a  general  notion  of  this  legislation ;  its 
details  must  be  postponed  for  a  subsequent  examination. 
In  nearly  all  the  states  the  common-law  rules  giving  the 
husband  an  ownership  or  interest  in  his  wife's  property 
have  been  abrogated;  the  wife  is  clothed  with  a  full  legal 

§78,  (a)  The  text  is  cited  in  New-  679,  6S0,  118  C.  C.  A.  Ill;  Messner 
berry    v.    Wilkinson,    199    Fed.    673,       v.  Giddings,  65  Tex.  301. 


§  80  EQUJTY    JURISPRUDENCE.  90 

estate  in  and  riglit  to  all  the  property,  real  and  personal, 
which  she  has  at  the  time  of  the  marriage,  or  which  she 
may  acquire  by  inheritance,  by  will,  conveyance,  grant,  or 
gift,  during  its  continuance;  and  she  has  generally  the 
entire  power  of  its  management  and  disposition,  as  though 
she  were  unmarried.  This  is  the  prevailing  type  of  statute, 
but  in  some  of  the  states  the  husband  must  join  in  a  deed 
or  mortgage  of  her  land,  and  in  a  very  few  he  is  still  en- 
titled to  its  possession.  In  addition  to  the  foregoing,  there 
are  certain  special  forms  of  legislation  prevailing  over 
large  portions  of  the  country.  A  number  of  the  western 
and  southwestern  states  have  substantially  adopted  the 
French  system  of  ''community  of  assets,"  whereby  the  two 
spouses  are  co-owners  of  the  community  property,  which  is 
under  the  husband's  exclusive  management  during  their 
joint  lives.  With  reference  to  the  wife's  capacity  of  en- 
tering into  contracts,  there  are  two  general  types  or  classes 
of  the  legislation.  By  the  first,  which  is  confined  to  a 
comparatively  few  states,  she  is  clothed  with  full  power 
to  contract  in  any  business,  trade,  or  profession  which  she 
carries  on,  and  also  with  reference  to  her  own  property, 
and  the  latter  embraces  all  agreements  made  for  the  bene- 
fit of  her  property,  and  all  agreements  made  for  any  pur- 
pose which  are  expressly  charged  upon  such  property. 
All  these  contracts  are  legal  in  every  sense  of  the  term, 
and  not  equitable.  "When  once  made,  they  become  per- 
sonally binding  upon  her,  and  are  enforced  by  ordinary 
legal  actions,  legal  pecuniary  judgments,  and  executions. 
By  the  second  class,  which  prevails  in  most  of  the  states, 
the  wife's  capacity  is  limited  to  agreements  made  with 
reference  to  her  property;  these  contracts  are  wholly 
equital3le  in  their  nature  and  obligation,  and  can  only  be 
enforced  by  an  equitable  action  against  the  property  itself, 
and  not  against  the  wife  personally. 

§  80.     The  effect  of  this  legislation  upon  the  equity  ju- 
risdiction in  the  United  States  must  be  veiy  great.     In  the 


91  PRESENT    RELATIONS    OF    EQUITY    WITH    THE    LAW.         §  80 

first  place,  the  married  woman's  equitable  separate  estate, 
and  the  doctrines  of  equity  directly  concerned  with  its 
maintenance,  are,  for  the  future  at  least,^  superseded.  The 
fabric  constructed  by  the  chancellors  with  so  much  acumen 
and  skill,  in  order  to  protect  the  natural  rights  of  wives 
which  the  law  ignored,  is  virtually  overthrown.  The  law, 
by  conferring  full  legal  ownership  upon  married  women, 
has  done  for  them  much  more  than  family  settlements  or 
nuptial  contracts  can  do,  even  when  enforced  by  courts  of 
equity.  Equity  in  the  United  States  is  thus  at  one  blow 
relieved  of  a  subject-matter  which  in  England  occasions  a 
very  large  part  of  its  actual  jurisdiction.  With  respect  to 
the  contracts  of  married  women,  the  effect  of  the  modern 
legislation  has  been  directly  the  opposite  in  different  states. 
In  those  commonwealths  where  wives  have  been  clothed 
with  the  large  capacity  to  contract,  and  their  contracts  have 
been  made  legal,  the  equitable  jurisdiction  over  their  agree- 
ments has  been  virtually  abrogated.  Whatever  kind  of  con- 
tract is  within  the  power  of  a  married  woman  falls  under 
the  ordinary  jurisdiction  of  the  law  courts,  and  a  suit  in 
equity  to  enforce  it  as  a  charge  upon  any  specific  property 
belonging  to  her  would  be  useless,  even  if  it  could  now  be 
maintained.  In  all  the  other  states  where  the  wife's  con- 
tracts are  not  yet  made  legal,  the  equitable  jurisdiction 
is  to  a  certain  extent  enlarged.  It  is  no  longer  confined  in 
its  operation  to  her  separate  equitable  estate  held  in  trust 
for  her  by  an  express  or  implied  trustee ;  it  reaches  to  and 

§  80,  1  These  statutes,  of  course,  do  not  affect  existing  estates  held  in 
trust  for  wives ;  but  in  many  of  the  'states  they  authorize  the  wife,  by 
means  of  an  order  of  court,  to  convert  such  equitable  interests  into  legal 
estates;  that  is,  to  compel  a  conveyance  of  the  land  directly  to  themselves 
by  the  trustees.  Nor  do  these  statutes  forbid  the  creation  of  trusts  in 
favor  of  married  women  in  future,  and  such  trusts  are  even  now  occa- 
sionally created;  but  all  necessity  for  them,  in  order  to  protect  wives 
against  the  acts  or  defaults  of  husbands,  is  removed,  and  the  only  ad- 
vantage of  such  a  trust  is  the  protection  of  the  land  against  the  acts  of 
the  wives  themselves,  by  so  arranging  the  ownership  that  they  can  neither 
aUenate  nor  encumber  it. 


§§81,82  EQUITY   JURISPRUDENCE.  92 

operates  upon  all  her  property  of  which  she  holds  the  full 
legal  title  and  interest.  While  the  wife's  power  to  make 
contracts  which  shall  be  a  charge  upon  her  property  is 
not  increased,  the  property  thus  affected,  and  which  can  be 
reached  by  a  court  of  equity,  is  all  which  the  wife  holds  in 
her  own  name  and  right  by  a  legal  title. 

§  81.  10.  Statutory  Limitations  of  Equity. — The  changes 
in  the  relations  of  law  and  equity  described  in  the  fore- 
going paragraphs  are  chiefly  those  resulting  from  altera- 
tions made  in  the  law  itself^  by  which  it  has  assumed  more 
of  an  equitable  character;  those  to  be  hereafter  described 
have  resulted  from  modifications  of  equity  jurisdiction  or 
jurisprudence.  In  several  of  the  states  the  full  equitable 
jurisdiction  exercised  by  the  English  chancery  has  never 
been  conferred  upon  any  tribunal,  A  partial  jurisdiction 
only  is  possessed  by  some  designated  court,  derived  from 
and  measured  by  statute,  defined,  limited,  confined  to  cer- 
tain enumerated  classes  of  subject-matters.  This  fact, 
which  is  most  important  to  members  of  the  profession 
practicing  in  all  parts  of  the  counti^^,  should  not  be  over- 
looked in  a  treatise  upon  equity  as  it  is  administered  in  the 
United  States. 

§  82.  11.  The  Auxiliary  Jurisdiction.^ — A  distinct  de- 
partment of  equity  jurisdiction  which  arose  at  an  early 
day  from  the  imperfection  of  the  legal  procedure  was 
termed  Auxiliary,  since  it  was  exercised,  not  to  obtain  any 
equitable  remedy,  nor  to  establish  any  equitable  right  or 
estate,  but  to  aid  in  maiiitaining  a  legal  right,  and  in 
prosecuting  actions  pending  or  to  be  brought  in  a  court 
of  law.  This  ancillary  function  of  chancery  was  the  neces- 
sary result  of  certain  inflexible  legal  rules — especially 
those  concerning  the  examination  of  witnesses  and  the  ob- 
taining of  evidence — which  interfered  with  the  administra- 
tion   of   justice    in   the    common-law   courts.     The    most 

§  82,   (a)   Sections  82  and  83  are  cited  in  Chapman  v.  Lee,  45  Ohio  St.  356, 
13  N.  E.  736. 


93  PRESENT    RELATIONS    OF    EQUITY    WITH    THE   LAW.         §  82 

important  and  common  instances  of  this  auxiliary  juris- 
diction were  ''Suits  for  Discovery"  and  ''Suits  for  Per- 
petuations of  Testimon}^,"  or  for  taking  testimony  "r/e 
bene  esse."  A  brief  description  of  these  proceedings — 
once  so  essential  for  the  attainment  of  justice — will  suf- 
fice for  my  present  purpose.  An  action  at  law  affecting 
property  rights  is  pending  between  A  and  B.  Eitlier  one 
of  the  parties, — I  will  assume  it  to  be  the  defendant,  B, — 
fearing  that  he  cannot  succeed  without  the  help  of  facts 
within  the  personal  knowledge  of  his  adversary,  com- 
mences a  suit  in  equity  against  A,  setting  forth  in  his  bill 
all  the  facts  of  the  case,  and  adding  thereto  such  inter- 
rogatories as  he  thinks  will  elicit  the  truth  from  A.  A 
is  thereupon  obliged  to  answer  this  bill  under  oath,  fully, 
and  without  reservation  or  evasion.  No  further  relief  is 
asked  by  the  plaintiff,  no  decree  is  made,  and  as  soon 
as  the  answer  is  complete,  the  function  of  the  equity  court 
is  ended.  Having  thus  obtained  the  written  statements  of 
his  adversary  under  oath,  B  can,  if  he  please,  use  them  as 
evidence  on  the  trial  of  the  action  at  law ;  and  under  certain 
circumstances  the  same  privilege  may  be  enjoyed  by  A  to 
use  his  answer  as  evidence  in  his  own  behalf.  Such  was 
the  nature  and  ofifice  of  the  ''Bill  of  Discovery";  and  for 
a  long  time  it  was  the  only  means  of  obtaining  the  evidence 
of  the  parties  for  use  on  the  trial  of  legal  actions.  The 
"Suits  to  Perpetuate  Testimony"  or  to  take  testimony 
de  bene  esse  were  special  modifications  of  this  contrivance. 
Wliere  a  dispute  with  respect  to  property  rights  existed 
between  A  and  B,  and  in  the  one  case  no  action  had  yet 
been  brought,  and  could  not  yet  be  brought,  while  in  the 
other  case  an  action  had  already  been  commenced,  and  im- 
portant evidence  is  within  the  knowledge  of  persons  who, 
from  age,  sickness,  or  other  sufficient  cause,  may  not  be 
able  to  testify  upon  the  expected  trial,  either  of  the  con- 
testants may  bring  a  suit  in  equity  against  the  other,  not 
for  the  purpose  of  trying  and  deciding  the  matters  in  con- 
troversy, but  for  the  purpose  merely  of  eliciting  the  facts 


§  83  EQUITY    JUEISPRUDENCE.  94 

through  the  answer  and  of  taking  the  testimony  of  the  wit- 
nesses. The  answer  and  depositions,  being  preserved  in 
the  offices  of  the  chancery,  can  then  be  nsed  npon  the  trial, 
of  the  legal  action,  whenever  it  shall  take  place.  In  other 
words,  a  court  of  equity  entertained  jurisdiction  of  the 
matter  to  the  extent  of  taking  the  evidence  and  putting  it 
into  a  permanent  form,  so  that  it  might  be  '' perpetuated' ' 
for  future  use  in  a  court  of  law.^ 

§  83.  These  instances  of  auxiliary  jurisdiction  have 
wholly  disappeared  from  the  English  system  under  the 
late  reorganization  of  the  courts  and  the  procedure,^  and 
have  almost  entirely  disappeared  from  the  equity  as  ad- 
ministered in  the  United  States. 2  In  England,  in  the 
states  of  this  country  generally,  and  in  the  United  States 
courts,  parties  are  permitted  to  testify  in  their  own  behalf, 
and  are  required  to  testify  in  behalf  of  their  adversaries,  in 
all  actions  and  proceedings  of  a  civil  nature,  so  that  every 
ground  or  reason  for  a  "bill  of  discovery"  has  been  re- 
moved, by  the  far  more  efficient  means  of  an  oral  and  per- 
sonal examination  conducted  by  counsel  in  open  court.  In 
the  states  which  have  adopted  the  reformed  American  pro- 
cedure, suits  for  mere  discovery  have  been  expressly 
abolished,  since  the  defendant  in  all  actions,  with  certain 
exceptions,  can  be  compelled  to  answer  under  oath  and  to 

§82,  1  See  pos^,  §§  238-242,  where  these  proceedings  are  more  fully 
described. 

§  83,  1  See  Judicature  Act,  Rules  of  Procedure,  25-27. 

§  83,  2  It  should  be  carefully  observed  that  this  proposition  is  confined 
to  "bills  of  discover^',"  properly  so  called,  as  described  in  the  test.  The 
term  "discovery"  is  often  applied,  but  very  improperly  applied,  to  the 
statements  and  admissions  made  by  the  defendant  in  his  answer,  which 
may  be  useful  to  the  plaintiff  as  evidence  in  the  same  suit  in  which  the 
answer  is  filed.  There  is  nothing  m  either  the  English  or  the  American 
procedure  which  prevents  the  plaintiff  in  any  action  from  taking  advan- 
tage of  all  such  admissions  and  disclosures  of  fact  which  the  defendant  in 
^tiiat  action  may  make  by  his  answer;  on  the  contrai'y,  such  disclosures  in 
the  pleadings  are  favored  and  sometimes  required.  But  this  is  not  "dis- 
covery," teehnieaUy  and  properly  so  called. 


95  PBESENT    RELATIONS    OF    EQUITY    WITH    THE    LAW.         §  84 

testify  as  a  witness.  In  other  states  wliich  keep  up  tlie 
two  jurisdictions  of  law  and  equity  administered  l)y  the 
same  tribunal,  discovery  as  an  auxiliary  to  trials  at  law  is 
no  longer  necessary;  and  is,  I  believe,  practically  o])solete 
even  where  not  formally  abrogated.^  ^  In  the  few  states 
which  still  retain  a  separate  Court  of  Chancery,  this  juris- 
diction may  be  "nominally  preserved.  The  jurisdiction  to 
perpetuate  testimony  has  generally  been  supplanted  by 
simple,  inexpensive,  and  more  summary  and  efficient 
methods  prescribed  by  statute,  which  can  be  applied  to  all 
actions  for  the  purpose  of  obtaining  and  preserving  any 
species  of  evidence.  It  seems  to  be  still  retained,  however, 
upon  the  statute-books  of  several  of  the  states. 

§  84.  12.  The  Reformed  Procedure. — The  most  radical 
and  extensive  alteration  in  the  relations  between  law  and 
equity  has  been  wrought  by  the  Reformed  American  Pro- 
cedure, which  prevails  in  more  than  half  the  common- 
wealths of  this  country,  and  all  the  essential  features  of 
which  are  enacted  by  the  recent  English  Judicature  Act.^ 
The  grand  underlying  principle  of  this  system  consists 
in  the  abolition  of  all  the  forms  of  legal  actions,  the  aboli- 
tion of  all  distinctions  between  actions  at  law  and  suits  in 
equity,  and  the  establishment  of  one  Civil  Action  for  the 
enforcement  of  all  remedial  rights.  In  and  by  this  one 
civil  action,  legal  and  equitable  causes  of  action,  legal  and 
equitable  defenses,  and  legal  and  equitable  remedies  may 
be  united,  and  may  be  determined  by  the  same  judgment. 
It  has  been  settled  by  numerous  decisions,  wherever  this 
system  exists,  that  the  legislative  changes,  being  confined 

§  83,  3  In  several  of  the  states  which  have  not  adopted  the  reformed 
procedure,  "bills  of  discovery"  are  expressly  abolished. 
§  84,  1  See  ante,  §  40,  note. 

§  83,  (a)  The  text  is  cited  to  this  The  text  is  cited,  also,  in  Becker  v. 

effect  in  Chapman  v.  Lee,  45   Ohio  Frederick  W.  Lipps  Co.   (Md.),  101 

St.   356,   13   N.  E.   736;   Turnbull   v.  Atl.  783. 
Crick,   63   Minn.   91,   65   N.   W.   135. 


§  85  EQUITY    JURISPRUDENCE.  96 

to  procedure,  have  not  affected  the  substantial  doctrines 
either  of  law  or  of  equity, — those  doctrines  which  define 
and  declare  the  primary  rights  and  duties  of  individuals, 
and  the  remedies  or  reliefs  to  which  they  may  be  entitled. 
This  proposition  must,  however,  be  accepted  and  under- 
stood with  its  proper  and  necessary  limitations.  The  legis- 
lation has  done  much  more  than  alter  the  mere  external 
forms  and  modes  of  procedure ;  it  has  necessarily  affected 
to  a  certain  extent  the  equity  jurisdiction  in  the  granting 
of  its  remedies,  and  has  in  some  instances  rendered  the 
exercise  of  that  jurisdiction  unnecessary,  by  removing  the 
ground  and  occasion  for  the  remedies.  In  other  words,  the 
legislation  has  made  it  unnecessary,  under  certain  circum- 
stances, to  bring  a  suit  in  equity  and  to  obtain  specific  equi- 
table relief.  The  most  important  of  these  results  I  shall 
point  out  in  a  very  brief  manner.a 

§  85.  In  the  first  place,  the  permission  to  set  up  an  equi- 
table defense  against  a  legal  cause  of  action  has  in  a  great 
number  of  instances  removed  all  occasion  for  bringing  a 
suit  in  equity  by  which  the  equitable  right  of  the  defend- 
ant constituting  his  defense  may  be  established  and  the 
prosecution  of  the  legal  action  may  be  restrained.  I  take 
a  simple  example  of  a  very  large  class  of  cases.  A,  the 
vendor  in  a  contract  for  the  sale  of  land,  brings  an  action  of 
ejectment  against  B,  the  vendee,  who  is  in  possession,  and 
having  the  legal  title,  must  of  course  recover  at  law.  B 
was  therefore  obliged  to  file  a  bill  in  equity  against  A,  and 
obtain  thereby  a  decree  of  specific  performance,  and  in  the 
meantime  an  injunction  restraining  the  further  prosecu- 
tion of  the  action  at  law.  Having  obtained  a  conveyance  of 
the  legal  title  under  his  decree,  B  would  be  in  a  position  to 
defend  the  action  of  ejectment,  or  any  subsequent  one  which 
might  be  brought  against  him.  By  the  reformed  procedure, 
when  the  vendor  commences  a  legal  action  to  recover  pos- 
session of  the  land  from  the  vendee,  the  latter  need  not 

§  84,   (a)   See  post,  §  354,  and  note. 


97  PRESENT    EELATIONS    OF    EQUITY    WITH    THE    LAW,  §  86 

resort  to  a  second  equitable  suit,  nor  obtain  an  injunction. 
The  whole  controversy  is  determined  in  the  one  proceedinj^. 
B's  equitable  estate  and  right  to  a  conveyance  is  not  only 
a  negative  defense  to  A's  legal  cause  of  action,  but  entitles 
B  in  the  same  action  to  assume  the  position  of  an  actor, 
and  to  obtain  the  full  affirmative  relief  which  he  would 
formerly  have  obtained  by  his  separate  bill  in  equity, — a 
decree  for  a  specific  performance  and  a  conveyance  of  the 
legal  estate.  Although  no  substantial  doctrines  of  equity 
have  been  altered,  still,  the  vendee  is  no  longer  compelled 
in  such  circumstances  to  sue  in  equity,  nor  to  demand  the 
ancillary  remedy  of  an  injunction. 

§  86.  This  familiar  example  may  be  generalized  into 
the  following  universal  proposition:  Whenever,  under  the 
former  procedure,  one  party.  A,  had  a  legal  estate  or 
right  which  entitled  him  to  recover  in  an  action  at  law 
brought  against  B ;  and  where  B,  having  no  legal  defense 
to  this  action,  was  still  possessed  of  an  equitable  estate  or 
right  which  entitled  him  to  some  particular  affirmative 
equitable  remedy, — as,  for  example,  a  specific  performance. 
a  reformation  or  correction,  a  cancellation,  a  rescission,  etc., 
— which  remedy  when  obtained  would  clothe  him  with  the 
legal  estate  or  right,  and  enable  him  thereby  to  defeat 
the  plaintiff  A's  action  at  law;  and  where,  under  these  cir- 
cumstances, B  would  be  obliged  to  go  into  a  court  of  equity 
jurisdiction,  and  file  a  bill  therein  against  A,  and  obtain  a 
decree  granting  the  desired  equitable  relief,  and,  as  an  in- 
cident thereto,  procure  an  injunction  restraining  A's  action 
at  law, — in  all  such  cases,  the  necessity,  and  even  the  pro- 
priety, of  bringing  the  separate  equity  suit  and  enjoining 
the  legal  action  are  completely  obviated,  since  B  can  set 
up  all  his  equity  by  way  of  defense  or  counterclaim,  recover 
a  judgment  for  the  affirmative  relief  which  he  seeks,  and 
defeat  the  action  brought  against  him  by  A,  in  that  very 
action  itself.  It  would  not  be  correct  to  say  that  the  equity 
jurisdiction  has  been  abrogated  in  this  class  of  cases,  since 

1—7 


§  87  EQUITY    JUKISPRUDENCB.  98 

the  defendant  B  might  possibly  follow  the  former  method, 
and  bring  a  separate  action  instead  of  setting  up  his  equi- 
table rights  as  a  defense  and  counterclaim;  .but  this  cir- 
cuitous mode  of  proceeding  is  seldom  adopted,  and  will 
ultimately,  perhaps,  be  prohibited  by  the  courts,  so  that 
this  direct  equity  jurisdiction  will  doubtless,  in  time,  be- 
come obsolete. 1  ^ 

§  87.  One  other  equally  important  change  produced  by 
the  reformed  procedure  should  be  mentioned.  Under  the 
system  of  separate  jurisdiction,  when  a  person  possesses 
an  equitable  right  or  estate  entitling  him  to  some  particular 
equitable  remedy  which,  when  obtained,  would,  in  turn, 
confer  upon  him  a  legal  right  or  estate  in  respect  to  the 
subject-matter,  and  enable  him  therewith  to  maintain  an 
action  at  law,  he  is  obliged  (except  in  a  few  special  cases) 
first  to  bring  a  suit  in  equity  and  procure  a  decree  estab- 
lishing his  right  and  granting  him  the  needed  equitable 
remedy,  which  clothes  him  with  the  legal  title  or  estate. 
Having  thus  acquired  a  legal  basis  for  his  demand,  he  must 
go  into  a  court  of  law  and  enforce  his  newly  perfected  legal 

§  86,  1  The  following  cases  illustrate  the  operation  of  equitable  de- 
fenses: Dobson  V.  Pearee,  12  N.  Y.  156,  62  Am.  Dec.  152;  Pitcher  v. 
Hennesey,  48  N.  Y.  415;  Heermans  v.  Robertson,  64  N.  Y.  332;  Crary 
V.  Goodman,  12  N.  Y.  266,  268,  64  Am.  Dec.  506;  Hoppough  v.  Struble, 
60  N.  Y.  430;  Bartlett  v.  Judd,  21  N.  Y.  200,  203,  78  Am.  Dec.  131; 
Cavalli  V.  Allen,  57  N.  Y.  508,  514;  Andrews  v.  Gillespie,  47  N.  Y.  487, 
490;  McClane  v.  White,  5  Minn.  178;  Richardson  v.  Bates,  8  Ohio  St. 
257,  264;  Petty  v.  Malier,  15  B.  Mon.  604;  Harris  v.  Viuyard,  42  Mo.  568; 
Onson  V.  Cown,  22  Wis.  329;  Talbot  v.  Singleton,  42  Cal.  390,  395,  396; 
Bruek  v.  Tucker,  42  Cal.  346,  352;  Lombard  v.  Cowham,  34  Wis.  486, 
492.  There  may  still  be  cases  in  which  the  defendant  in  the  action  at  law 
cannot  obtain  full  relief  by  means  of  an  equitable  defense,  and  is  obliged 
to  bring  a  separate  suit  in  equity,  and  to  obtain  his  equitable  remedy  by 
an  affirmative  decree,  and  in  the  mean  time  an  injunction  restraining  the 
action  at  law.  See  this  question  quite  fully  discussed  by  Folger,  J.,  in 
Erie  Railway  Co.  v.  Ramsey,  45  N.  Y.  637. 

§86,  (a)  The  text  is  cited  to  the  such  judgment,  under  the  reformed 
effect  that  fraud  in  obtaining  a  procedure:  Hogg  v.  Link,  &0  Ind. 
judgment  is  an  equitable  defense  to       346,  350. 


99  PRESENT   RELATIONS    OF    EQUITY    WITH    THE    LAW.  §  87 

demand  by  means  of  a  legal  action.  As  familiar  illustra- 
tions, if  a  person  holds  an  equitable  estate  under  a  land  eon- 
tract,  he  must  compel  a  specific  performance  in  equity  be- 
fore he  can  recover  possession  of  the  land  at  law;  if  he 
holds  the  equitable  estate  under  an  implied  trust,  he  must 
in  general  obtain  a  transfer  of  the  legal  title  from  the  trus- 
tee before  he  can  maintain  ejectment  for  the  possession; 
if  the  instrument  under  which  he  claims  is  infected  with 
mistake,  and  his  full  rights  under  it  depend  upon  a  correc- 
tion of  the  mistake,  he  must  obtain  the  remedy  of  reforma- 
tion or  re-execution  in  equity,  and  may  then  enforce  his  per- 
fected legal  right  by  the  proper  action  at  law;  if  his  estate 
in  land  is  purely  an  equitable  one  because  a  deed  voidable 
through  fraud  has  conveyed  the  legal  title  to  another  per- 
son, the  equitable  remedy  of  cancellation  or  rescission  must 
be  granted  before  a  legal  action  for  the  possession  can  be 
successful.  Wherever  the  reformed  procedure  has  been 
administered  according  to  its  plain  intent,  the  necessity  of 
this  double  judicial  proceeding  has  been  obviated;  indeed, 
if  the  true  spirit  of  the  new  procedure  is  accepted  by  the 
courts,  siich  a  separation  of  equitable  and  legal  rights  and 
remedies,  and  their  prosecution  in  distinct  actions,  will  not 
perhaps  be  allowed.  The  plaintiff  brings  one  civil  action 
in  which  he  alleges  all  the  facts  showing  himself  entitled 
to  both  the  equitable  and  the  legal  reliefs  needed  to  com- 
plete his  legal  right,  and  asks  and  obtains  a  double  judg- 
ment, granting,  first,  the  proper  equitable,  remedy,  and 
secondly,  the  legal  remedy,  by  which  his  juridical  position 
with  respect  to  the  subject-matter  is  finally  perfected  ;ia 

§87,  1  As  illustrations,  see  Laub  v.  Buckmiller,  17  N.  Y.  620,  626; 
Lattin  V.  ]\IcCarty,  41  N.  Y.  107,  109;  N.  Y.  lee  Co.  v.  N.  W.  Ins.  Co.,  23 
N.  Y.  357;  Cone  v.  Niagara  Ins.  Co.,  60  N.  Y.  619;  Turner  v.  Pierce,  34 
Wis.  658,  665;  Gray  v.  Dougherty,  25  Cal.  266;  Henderson  v.  Dickey,  50 
]\ro.  161,  165;  Guernsey  v.  Am.  Ins.  Co.,  17  Minn.  104,  108.  But  see 
Supervisors  v.  Decker,  30  Wis.  624. 

§87,  (a)  The  text  is  quoted  and  Wash.  74,  70  Pac.  264,  for  the  facts 
followed  in  Browder  v.  Phinney,  30       of  which  see  post,  §  183,  note. 


§  88  EQUITY    JUEISPRUDEN-CE.  100 

or  he  may  simply  demand  and  recover  a  judgment  confer- 
ring only  the  final  legal  remedy,  the  preliminary  equitable 
relief  being  assumed  as  an  essential  prerequisite  to  the 
recovery,  but  not  being  in  terms  awarded  by  the  court.^ 
It  follows,  as  an  incident  of  this  union  of  rights  and  reme- 
dies in  one  action,  that  all  occasion  for  the  ancillary  or 
provisional  equitable  remedy  of  injunction  to  restrain  the 
defendant  from  proceeding  at  law  is  often,  and  indeed  gen- 
erally, avoided  in  this  class  of  cases. 

§  88.  The  results  of  this  reform  in  the  procedure  might 
be  described  with  much  more  detail;  but  I  have  already 
accomplished  my  purpose,  which  was  to  indicate  some  of 
the  great  changes  made  by  judicial  decisions  and  by  acts 
of  the  legislatures  in  the  relations  formerly  subsisting  be- 
tween law  and  equity,  and  in  the  body  itself  of  equity  juris- 
prudence. The  foregoing  sketch,  mere  outline  as  it  is,  also 
shows  very  plainly  that  a  treatise  which  would  accurately 
represent  to  the  reader  the  equity  jurisprudence  of  the 
United  States,  must  conform  to  modem  facts,  rather  than 
follow  ancient  traditions.  It  must  recognize  the.  existing 
condition,  both  of  the  law  and  of  equity,  the  limitations 
upon  the  chancery  jurisdiction,  the  alterations  made  by 
American  legislation,  institutions,  and  social  habits.  Many 
doctrines  and  modes  of  applying  the  jurisdiction  which 
were  important  at  an  earlier  day,  and  are  perhaps  still 
prominent  in  England^  have  become  practically  obsolete 
in  this  country,  while  others  have  risen  in  consequence,  and 
are  constantly  occupying  the  attention  of  the  courts.  It  is 
my  purpose  to  discuss  and  describe  the  equity  jurispru- 
dence as  viewed  in  this  light,  and  to  present  the  system 
which  is  now  administered  by  the  state  and  national  courts 
of  the  United  States.  It  is  true  that  the  fundamental  prin- 
ciples are  the  same  as  those  which  were  developed  through 

§87,  2  See  BidweU  v.  Astor  Ins.  Co.,  16  N.  Y.  263,  267;  Phillips  v. 
Gorham,  17  N.  Y.  270 ;  Caswell  v.  West,  3  Thomp.  &  C.  383 ;  McNeady  v. 
Hyde,  47  Cal.  481,  483 ;  Sternberger  v.  McGovem,  56  N.  Y.  12,  21. 


lUl  THE    CONSTITUENT   PAETS    OF    EQUITY.  §§89,90 

the  past  centuries  by  the  English  chancery;  but  the  appli- 
cation of  these  principles,  and  the  particular  rules  which 
have  been  deduced  from  them,  have  been  shaped  and  deter- 
mined by  modern  American  national  life,  and  have  received 
the  impress  of  the  American  national  character. 


SECTION  IV. 
THE  CONSTITUENT  PARTS  OF  EQUITY. 

ANALYSIS. 

§  89.     Object  of  this  section. 
§§90,91.     Eights  are  either  "primary"  or  "remedial";  each  described. 

§92.     Divisions  of  "primary"  rights,  viz:   1.  Those  concerned  with  per- 
sonal status;  2.  Those  concerned  with  things. 
§§93-95.     Two  general  classes  of  rights  concerned  with  things,  viz.:   "real" 

and  "personal";  each  described. 
§§  96,  97.     What  of  these  kinds  of  rights  are  embraced  within  equity;  both 
"primary"  and  "remedial." 
§§98-107.     I.  Equitable  primary  rights,  kinds  and  classes  of. 
§§  108-116.     II.  Equitable  remedial  rights,  kinds  and  classes  of. 

§  112.     General  classes  of  equitable  remedies. 
§§  113-116.     Mode  of  administering  them. 

§  116.     How  far  legal  and  equitable  modes  can  be  combined. 
§  117.     Recapitulation. 

§  89.     Object  of  This  Section. — I  have  thus  far  described 

the  historical  origin  of  equity,  and  its  general  nature  con- 
sidered simply  as  a  separate  department  of  the  national  ju- 
risprudence, and  in  its  relations  with  the  other  department 
called  the  ''law."  It  is  necessary  now  to  make  a  closer 
investigation  into  the  internal  elements  and  features  of 
equity,  and  to  determine  its  constituent  parts, — the  char- 
acter of  the  rights  and  duties  created  by  its  doctrines  and 
rules. 

§  90.  Classes  of  Rights. — ^Laying  out  of  view  the  rules 
which  form  the  ''public  law"  and  the  "criminal  law,"  all 
the  commands  and  rules  which  constitute  the  ' '  private  civil 
law"  create  two  classes  of  rights  and  duties,  the  "pri- 
mary" and  the  "remedial."     The  primary  rights  and  du- 


§  91  EQUITY    JUIIISPRUDENCE.  102 

ties  form  tlie  body  of  the  law;  tliey  include  all  the  rights 
and  obligations  of  property,  of  contract,  and  of  personal 
status;  they  are  the  very  end  and  object  of  all  law.  If 
mankind  were  so  constituted  that  disobedience  to  legal 
rules  was  impossible,  then  the  law  would  be  entirely  made 
up  of  the  rules  which  create  these  primary  rights  and 
duties.  But  since  all  these  primary  rights  and  duties  may 
be  violated,  another  branch  of  the  law  becomes  necessar}^, 
which  may  enforce  obedience  by  means  of  the  "Remedies" 
which  it  provides.  All  possible  remedies  are  either  substi- 
tutes or  equivalents  given  to  the  injured  party  in  place  of 
his  original  primary  rights  which  have  been  broken,  or  they 
are  the  means  by  which  he  can  maintain  and  protect  his 
primarj^  rights  in  their  actual  form  and  condition.  Reme- 
dial rights  are  those  which  a  person  has  to  obtain  some 
appropriate  remedy  when  his  primary  rights  have  been  vio- 
lated by  another.  Remedial  duties  are  those  devolving 
upon  the  wrong-doer  in  such  case  to  give  the  proper  remedy 
prescribed  by  law. 

§  91.  Primary  and  remedial  rights  and  duties  stand 
towards  each  other  in  the  following  relations :  Every  com- 
mand or  rule  of  the  private  civil  law  creates  a  primary 
right  in  one  individual,  and  a  primary  duty  corresponding 
thereto  resting  upon  another  person  or  number  of  persons. 
These  rights  and  duties  are,  of  course,  innumerable  in  their 
variety,  nature,  and  extent.  If  a  person  upon  whom  a  pri- 
mary duty  rests  towards  another  fails  to  perform  that  duty, 
and  thereby  violates  the  other's  primary  right,  there  at 
once  arise  the  remedial  right  and  duty.  The  one  whose 
primary  right  has  been  violated  immediately  acquires  a 
secondary  right  to  obtain  an  appropriate  remedy  from  the 
wrong-doer,  while  the  wrong-doer  himself  becomes  sub- 
jected to  the  secondary  duty  of  giving  or  suffering  such 
remedy.^     It  is  the  function  and  object  of  courts,  both  of 

§91,  1  See  2  Austin  on  Jurisprudence,  pp.  450,  453;  vol.  3,  p.  1G2; 
Pomeroy  on  Specific  Performance  of  Contracts,  §  1;  Pomeroy  on  Reme- 
dies and  Remedial  Rights,  §§1,  2. 


103  THE    CONSTITUENT    PARTS    OF    EQUITY.  §  92 

law  and  of  equity,  to  directly  enforce  these  remedial  rights 
and  duties  by  conferring  the  remedies  adapted  to  the  in- 
jury, and  thus  to  indirectly  maintain  and  preserve  inviolate 
the  primary  rights  and  duties  of  the  litigant  parties.  It  is 
plain  from  this  anal^^sis  that  the  nature  and  extent  o:^  reme- 
dial rights  and  duties,  and  of  the  remedies  themselves,  must 
depend  upon  two  distinct  factors  taken  in  combination, 
namely,  the  nature  and  extent  of  the  primary  rights  which 
are  violated,  and  the  nature  and  extent  of  the  wrongs  in 
and  by  which  the  violation  is  effected.  The  same  primary 
right  may  be  broken  by  many  kinds  of  wrong-doing;  and 
the  same  wrongful  act  or  default  may  invade  many  differ- 
ent rights.  The  wrongs  which  are  breaches  of  primary 
rights  may  be  either  positive  acts  of  commission  or  nega- 
tive omissions;  their  variety,  form,  and  nature  are  prac- 
tically unlimited,  and  no  classification  of  them  is  necessary 
for  the  purposes  of  this  discussion. 

§  92.  Primary  Rights. — ^A  very  general  analysis  and 
classification  of  Primary  Eights  and  Duties  will,  however, 
be  essential  to  an  accurate  notion  of  the  constituent  parts 
of  equity.  The  rules  and  their  resulting  primary  rights 
and  duties  which  make  up  the  private  municipal  law — 
omitting,  as  before  stated,  the  public  and  the  criminal  law 
— fall  by  a  natural  line  of  separation  into  two  grand  divi- 
sions, namely:  1.  Those  directly  and  exclusively  concerned 
with  or  relating  to  Persons;  2,  All  the  remaining  portions, 
which,  in  a  broad  sense,  relate  to  or  are  concerned  with 
Things.  The  first  of  these  divisions,  under  a  natural  and 
logical  system  of  arrangement,  comprises  only  those  rules 
the  exclusive  object  of  which  is  to  define  the  status  of  per- 
sons ;  or  in  other  words,  those  which  determine  the  capaci- 
ties and  incapacities  of  persons  to  acquire  and  enjoy  legal 
rights,  and  to  be  subject  to  legal  duties.^  In  the  United 
States,  where  nearly  all  distinctions  of  class  have  been 

§  92,  1  See  2  Austin  on  Jurisprudence,  pp.  10,  382,  386,  note,  412; 
vol.  3,  pp.  170-172. 


§  93  EQUITY   JURISPRUDENCE.  104 

abolished,  and  all  persons  sui  juris  stand  upon  an  equality 
with  respect  to  their  capacity  of  enjoying  civil  rights,  and 
of  being  subject  to  civil  duties,  this  division  contains  but  a 
very  small  part  of  the  law,  as  compared  with  the  corre- 
spondijig  department  in  the  Eoman  law,  or  even  in  the 
existing  law  of  many  European  countries.  It  also  follows, 
as  a  necessary  consequence  of  this  principle  of  classifica- 
tion, that  most  of  the  matter  which  Blackstone,  and  after 
him  Kent  and  other  institutional  writers,  have  treated  as 
belonging  to  the  so-called  ''Eights  of  Persons,"  has  been 
misplaced.  Such  matter  has  no  connection  whatever  with 
personal  status  or  capacity,  and  if  any  scientific  or  consis- 
tent system  of  arrangement  is  pursued,  it  plainly  belongs 
among  those  rules  which  relate  to  Things.^ 

§  93.  The  primary^  rights  embraced  in  the  second  grand 
division  of  the  law — those  concerned  with  or  relating  to 
Things — are  naturally  separated  into  two  principal 
classes,  namely,  Eights  in  rem,  or  Eeal  rights,  and  Eights 
in  personam,  or  Personal  rights.  Eights  in  rem,  or  real 
rights,  are  those  which,  from  their  very  nature,  avail  to 

§  92,  2  Simply  as  illustrations  of  this  improper  classification,  and  with- 
out attempting  to  enumerate  all  the  cases,  I  mention  the  following:  All 
the  rules  concerning  the  property  and  contracts  of  married  women,  and 
the  contracts  actually  made  by  infants,  have  no  proper  place  in  the  diW- 
sion  which  treats  of  the  "Law  as  to  Persons";  they  form  a  part  of  the 
law  concerning  Things,  in  exactly  the  same  manner,  and  for  exactly  the 
same  reason,  that  the  rules  regulating  the  property  and  contracts  of  adult 
men  or  of  single  women  belong  to  the  law  of  things.  The  same  is  true 
of  the  rules  defining  rights  which  Blackstone  calls  "absolute  rights  of 
persons,"  but  which  are  no  more  absolute  than  their  rights  of  property,  or 
rights  growing  out  of  contract.  The  rules  defining  the  rights  and  duties 
existing  between  husband  and  wife,  parent  and  child,  guardian  and  ward, 
master  and  servant,  also  come  within  the  law  concerning  things,  as  truly 
as  do  those  which  define  the  rights  and  duties  existing  between  the  parties 
to  any  and  every  contract.  The  subject  of  corporations,  with  all  of  its 
ramifications  involving  every  department  of  the  private  Municipal  Law, 
has  not  even  the  semblance  of  belonging  to  the  division  which  comprises 
the  "Law  concerning  Persons." 


105  THE    CONSTITUENT    PARTS    OF    EQUITY.  §  94 

their  possessor  against  all  mankind,  and  a  correlative  duty 
rests  alike  upon  every  person  not  to  molest,  interfere  with, 
or  violate  the  right.  Rights  in  personam,  or  personal 
rights,  are  those  which  avail  to  their  possessor  against  a 
specified,  particular  person,  or  body  of  persons  only,  and 
the  correlative  duty  not  to  infringe  upon  or  violate  the 
right  rests  alone  upon  such  specified  person  or  body  of 
persons. 

§  94.  Real  Rights. — The  first  of  these  classes,  the  rights 
in  rem,  embraces  three  distinct  genera,  which  differ  from 
each  other  in  the  subject-matter  over  which  the  rights  ex- 
tend, but  not  in  the  essential  nature  of  the  rights  them- 
selves. These  three  genera  are:  1.  Rights  of  property  of 
every  degree  and  kind  over  lands  or  chattels,  things  real 
or  things  personal;  2,  The  rights  which  every  person  has 
over  and  to  his  own  life,  body,  limbs,  and  good  name;  3. 
The  rights  which  certain  classes  of  persons,  namely,  hus- 
bands, parents,  and  masters,  have  over  certain  other  per- 
sons standing  in  domestic  relations  with  themselves, 
namely,  wives,  children,  and  servants  and  slaves.  In  all 
kinds  and  degrees  of  property  the  right  plainly  avails  to 
its  possessor  over  the  subject-matter — the  land  or  the 
chattel — against  all  mankind,  and  a  corresponding  duty 
rests  upon  every  human  being  not  to  interfere  with  or 
molest  him  in  the  enjoyment  of  the  property.  The  right 
which  every  person  has  over  his  own  life,  body,  limbs,  or 
good  name  is  of  the  same  general  nature.  It  imposes  an 
equal  duty  upon  every  one  not  to  injure,  or  in  any  manner 
disturb  or  molest,  the  possessor  of  the  right  in  the  free  use 
and  enjoyment  of  his  own  life,  body,  limbs,  or  good  name. 
The  rights  of  the  husband,  parent,  or  master  over  the  wife, 
child,  or  servant  are  in  our  law  very  meager  and  limited, 
but  so  far  as  they  exist  at  all,  they  resemble  the  more  com- 
plete rights  of  property,  because  they  avail  against  all  man- 
kind, and  impose  an  equal  duty  upon  every  human  being. 
Thus  the  husband  is,  by  virtue  of  this  right,  entitled  to  the 


^  95  EQUITY    JUIilSPKUDENCE.  106 

society  of  his  wife,  and  the  father  is  entitled  to  the  services 
of  his  infant  children,  while  a  duty  rests  upon  every  person 
not  to  violate  these  rights  by  enticing  away,  seducing,  or 
injuring  the  wife  or  child.  This  latter  group  of  rights  must 
not  be  confounded  with  those  which  the  husband  and  wife, 
parent  and  child,  master  and  servant,  hold  against  each 
other,  and  which  resemble  in  their  nature  the  rights  arising 
from  contract. 

§  95.  Personal  Rights. — The  second  class,  rights  in  per- 
sonam, personal  rights  (caUed  by  the  Roman  law  ''Obliga- 
tions") includes  two  distinct  genera,  namely:  1.  Rights 
arising  from  contract ;  and  2.  Rights  arising,  not  from  con- 
tract, but  from  some  existing  relation  between  two  specific 
persons  or  groups  of  persons,  which  is  generally  created  by 
the  law.  In  every  case  of  contract  the  right  is  held  by  one 
of  the  contracting  parties  and  avails  to  him  against  the 
other  party  alone,  while  the  corresponding  duty  rests  only 
upon  that  other  party,  and  not  upon  every  human  being. 
As  contracts  must  of  necessity  be  made  between  specified 
determinate  persons,  it  follows  that  the  rights  and  duties 
arising  from  contract  must  always  avail  against  and  rest 
upon  some  particular,  definite  person  or  number  of  persons. 
The  same  is  true  of  the  rights  and  duties  arising  from 
special  relations  existing  between  particular  persons,  cre- 
ated, not  by  contract,  but  by  the  law.  The  legal  effect  of 
these  special  relations  is  so  similar  to  that  produced  by 
contract,  that  the  rights  flowing  from  them  were  said  by 
the  Roman  law  to  arise  from  quasi  contract  (quasi  ex  con- 
tractu). The  important  and  ordinary  examples  of  this 
genus  are  the  rights  and  duties  against  each  other  subsist- 
ing between  husband  and  wife,  parent  and  child,  guardian 
and  ward,  executors  or  administrators  and  legatees,  dis- 
tributees, or  creditors,  and  in  many  cases  between  trustees 
and  cestuis  que  trustent.  This  general  classification  em- 
braces all  primary  rights  and  duties,  both  legal  and  equi- 
table, which  belong  to  the  private  civil  law. 


107  THE    CONSTITUENT    PAETS    OF    EQUITY.  §§96,97 

§  96.  Equitable  Rights. — The  foregoing  analysis  will  aid 
us  in  forming  a  clear  and  accurate  conception  of  the  con- 
stituent elements  which  make  up  the  equity  jurisprudence. 
Comparing  the  two  great  divisions  of  the  private  municipal 
law,  law  and  equity,  are  they  antagonistic,  or  simply  com- 
plementary to  each  other?  or  does  one  merely  occupy  a 
sphere  which  the  other  does  not?  Are  the  rules  creating 
the  primary  rights  and  duties  embraced  in  the  law  different 
from  the  same  class  of  rules,  rights,  and  duties  embraced 
in  equity?  Or  does  the  distinction  lie  solely  in  the  remedial 
rights  and  remedies  which  arise  from  the  violation  of  rules 
common  to  both,  and  in  the  judicial  modes  by  which  these 
remedies  are  obtained?  Equity  does  certainly  deal  largely 
in  remedies  and  rights  to  them,  and  the  opinion  has  been 
maintained  by  some  modern  writers,  that  it  consists  in 
nothing  else ;  that  all  the  rights  peculiar  to  it  and  which  it 
confers  are  remedial  rights, — rights  to  obtain  certain  forms 
of  remedy  unknown  to  the  law.  That  this  opinion  is  a 
mistaken  one  is  clearly  demonstrated  by  an  examination  of 
the  doctrines  and  rules  of  equity  as  now  established,  and 
the  results  which  they  have  produced. 

§  97.  Equity,  as  a  branch  of  the  national  jurisprudence, 
and  so  far  as  it  differs  from  the  law,  consists  in  fact  of  two 
parts,  two  different  kinds  of  rules  and  rights.  First,  it 
contains  a  mass  of  rules  which  create  primary  rights  and 
duties, — entirely  irrespective  of  the  remedies, — which  are 
different  from  the  corresponding  rules,  rights,  and  duties, 
with  respect  to  the  same  subject-matter,  contained  in  and 
enforced  by  the  law.  Secondly,  it  contains  another  mass  of 
rules  defining  and  conferring  a  variety  of  special  remedies 
and  remedial  rights,  both  of  which  are  to  a  very  great 
extent  unknown  to  the  law.  These  remedies  and  rights 
to  them  are  peculiarly  ''equitable,"  in  contradistinction  to 
those  of  the  law,  and  irrespective  of  any  difference  in  the 
primary  rights  for  the  violation  of  which  they  are  granted. 
There  may  be  four  kinds  of  cases  arising  in  the  administra- 


§  97  EQUITY   JURISPRUDENCE.  108 

tion  of  tlie  equity  jurisdiction.  1.  The  primary  right  of 
the  complaining  party  which  has  been  broken  may  be  purely 
legal, — that  is,  a  right  which  the  rules  of  law  confer, — 
while  his  remedial  right  and  the  remedy  which  he  obtains 
may  be  entirely  equitable,  recognized,  and  given  by  equity 
alone.  1  2.  His  primary  right  which  has  been  violated  may 
be  one  which  the  rules  of  equity  alone  create,  while  his 
remedial  right  and  remedy  may  also  be  only  known  to 
equity. 2  3.  His  primary  right  broken  may  be  entirely  equi- 
table, but  his  remedial  right  and  remedy  may  be  legal,  such 
as  are  recognized,  enforced,  and  granted  by  the  law.3 
4.  In  some  cases,  few  in  number,  his  primary  right  may 
be  legal,  while  his  remedial  right  and  remedy  are  also 

§  97,  II  give  simple  illustrations  of  these  four  classes.  Of  the  first 
class  is  a  suit  by  one  who  holds  the  legal  title  to  land, — his  primary  right, 
of  course,  being  legal, — to  restrain  the  commission  of  waste  upon  it,  or  of 
trespasses  doing  irreparable  damage;  also  the  suit  by  the  owner  in  fee 
of  land  in  possession,  to  declare  his  own  title  against  other  claimants  not 
in  possession,  whether  their  claims  be  legal  or  equitable.  This  latter  kind 
of  remedy  is  given  by  statute  in  many  states.  It  is  very  plain  in  these 
eases  that  the  plaintiff's  estate  and  right  are  wholly  legal,  and  the  remedies 
are  clearly  equitable.     The  instances  of  this  class  are  very  numerous. 

§  97,  -2  As  simple  illustrations :  A  suit  by  the  vendee  in  a  parol  contract 
for  the  sale  of  land  part  performed,  to  obtain  a  specific  performance.  The 
right  and  estate  under  the  contract  are  recognized  by  equity  alone,  and  the 
remedy  is  purely  equitable.  Also  a  suit  brought  by  a  mortgagor  of  land 
who  has  made  default,  to  redeem.  According  to  the  original  legal  and 
equitable  doctrines,  the  estate  of  such  mortgagor  is  purely  equitable.  Ac- 
cording to  the  doctrine  prevailing  generally  in  this  country,  the  estate  of 
the  mortgagor  is  legal,  and  the  case  would  fall  within  the  first  class.  Suits 
by  which  a  plaintiff's  equitable  title  is  turned  into  a  legal  estate,  by  the 
remedy  of  reformation,  cancellation,  and  the  like,  also  belong  to  this 
second  class. 

§  97,  3  In  this  class  are  some  suits  for  accounting,  the  plaintiff's  claim 
or  interest  in  the  fund  or  other  subject-matter  being  equitable,  and  the 
accounting  and  pecuniary  recovery  being  a  legal  remedy ;  also  many  suits 
in  which  the  plaintiff's  interest  is  equitable,  and  he  recovers  damages;  also 
suits,  by  an  equitable  assignee  of  a  fund  in  the  hands  of  a  third  person, 
to  recover  the  amount  thereof,  where  the  plaintiff's  ownership  is  wholly 
equitable,  but  his  relief  is  simply  a  recovery  of  a  certain  sum  of  money. 


109  THE    CONSTITUENT    PARTS    OF    EQUITY.  §  98 

legal,  such  as  are  administered  by  courts  of  law."*  The 
peculiar  feature  which  distinguishes  equity  from  the  law 
does  not  therefore  consist  solely  in  the  fact  that  it  pos- 
sesses remedies  which  the  law  does  not  admit,  nor  solely 
in  the  fact  that  it  creates  and  confers  primary  rights  and 
duties  different  from  any  which  the  law  contains,  but  in 
both  these  facts  combined.  These  two  elements  will  be 
examined  separately. 

§  98.  I.  Equitable  Primary  Rights. — Equity  consists  in 
part  of  rules  creating  primary  rights  and  duties  differing 
from  those  relating  to  the  same  subject-matter,  which  are 
purely  legal.  Kecurring  to  the  classification  given  in  a 
former  paragraph  (§  92),  it  will  enable  us  to  fix  the  limits 
of  these  primary  rights,  and  to  determine  the  classes  in 
which  they  are  all  found,  with  great  ease  and  precision. 
No  equity  primary  rights  belong  to  the  first  grand  division 
of  rights  relating  to  or  concerned  with  the  status  of  per- 
sons. All  the  rules  which  define  the  capacities  and  incapa- 
cities of  persons  to  acquire  rights  or  to  be  subject  to  duties 
are  strictly  legal.  The  only  apparent  exceptions  to  this 
proposition  are  the  statutory  special  proceedings  for  de- 
termining whether  a  person  is  a  lunatic,  or  non  compos 
mentis,  or  a  confirmed  drunkard,  and  the  statutory  suits 
for  divorce,  which  in  many  of  the  states  are  confided  to 
the  Chancellor,  or  to  a  judge  or  court  possessing  equity 
powers.  But  in  the  first  place,  these  proceedings  are 
wholly  statutory,  and  do  not  belong  to  the  equity  jurisdic- 
tion as  such;  and  in  the  second  place,  they  are  wholly 
remedial.^     All  the  primary  rights,  therefore,  which  form 

§  97,  4  The  suits  of  this  class  are  generally,  if  not  always,  actions  for 
accounting,  in  which  the  rights  and  interests  in  the  subject-matter  are 
purely  legal,  and  the  action  is  brought  in  equity  merely  for  convenience. 
The  accounting  and  recoveiy  of  money  are  of  course  a  legal  remedy.  The 
case  of  an  ordinary  suit  to  settle  accounts  among  partners,  where  neither 
of  them  is  insolvent,  and  no  equitable  liens  or  claims  to  marshal  the  assets 
arise,  is  a  familiar  example. 

§  98,  1  These  proceedings  are  in  truth  remedies ;  they  are  intended  to 
ascertain  and  establish  the  status  of  lunacy,  unsoundness  of  mind,  etc., 


§  §  99,  100  EQUITY   JURISPBTJDENCE.  110 

a  part  of  equity  are  referable  to  the  second  division  of 
Eights  relating  to  Things. 

§  99.  From  this  division,  also,  there  must  be  a  process 
of  elimination.  In  the  department  of  Real  rights,  Rights 
in  rem,  very  important  and  broad  limitations  are  to  be 
made.  No  equitable  primary  rights  are  contained  in  the 
second  of  the  three  genera  into  which  real  rights  are 
divided, — or  those  which  a  person  possesses  over  his  own 
life,  body,  limbs,  or  good  name.  All  the  rights  of  this  kind 
are  purely  legal ;  they  are  the  very  flower  and  fruit  of  the 
common  law, — its  highest  excellence;  and  equity  does  not 
intrude  upon  this  peculiar  field  of  the  law.  Nor  are  any 
equitable  primary  rights  contained  in  the  third  of  these 
genera, — the  rights  held  by  certain  classes  of  persons  over 
certain  other  persons  occupying  special  domestic  relations 
to\Yards  themselves.  The  rules  which  define  these  rights, 
and  determine  the  powers  of  husbands  over  their  wives, 
parents  over  their  children,  guardians  over  their  wards, 
masters  over  their  servants,  belong  exclusively  to  the  do- 
main of  the  law ;  equity  does  not  interfere  with  these  purely 
personal  relations.  It  is  only  when  some  property  rights 
or  questions  concerning  property  arise  between  husband 
and  wife,  parent  and  child,  guardian  and  ward,  that  equity 
can  possibly  have  jurisdiction,  and  even  in  such  cases 
the  jurisdiction  does  not  extend  to  the  merely  personal 
relations.^ 

§  100.  We  are  now  prepared  by  this  process  of  elimina- 
tion to  define  with  exactness  the  classes  of  primary  rights 
and  duties  which  alone  come  within  the  domain  of  equity, 

or  to  dissolve  the  status  of  marriage;  but  they  do  not  determine  the 
capacities  or  incapacities  of  hmatics,  etc., — all  the  rules  which  detennine 
who  are  lunatics,  insane,  married,  etc.,  and  their  capacities,  are  wholly 
legal,  and  not  equitable. 

§  99,   (a)   The  text  is  cited  to  this  bilt  v.  Mitchell,  71  N.  J.  Eq.  632,  63 

effect    in    Lombard    v.    Morse,    155  Atl.    1107;    reversed    on    appeal,    72 

Mass.  136,  14  L.  R.  A.  273,  29  N.  E.  N.  J.  Eq.  910,   14  L.  R.  A.    (N.  S.) 

205.     The  text  is  quoted  in  Vander-  304,  67  Atl.  97. 


Ill  THE    CONSTITUENT   PABTS    OF    EQUITY.  §  101 

and  thus  form  a  part  of  its  jurisprudence.  Among  the 
rights  in  rem,  real  rights,  it  is  only  those  of  the  first  genus, 
the  rights  of  property,  which  do  or  can  come  within  the 
scope  of  equity.  Among  the  rights  in  personam,  personal 
rights,  both  of  the  genera,  those  arising  from  contract  and 
those  arising  from  particular  relations  subsisting  between 
two  or  more  specific  persons,  may  come  within  the  domain 
of  equity.  The  rights  and  duties  of  the  parties  growing 
out  of  contracts,  and  especially  those. growing  out  of  cer- 
tain determinate  relations  not  based  upon  contract,  but 
directly  concerned  with  property,  such  as  trustee  and  cestui 
que  trust  in  all  its  forms,  guardian  and  ward,  executor  or 
administrator  and  legatees,  distributees,  or  creditors,  and 
the  like,  constitute  a  large  and  important  part  of  the  pri- 
mary rights  falling  under  the  equitable  jurisdiction.  Hav- 
ing thus  referred  the  primary  rights  which  equity  creates 
to  their  general  classes,  I  shall  now  describe  with  more  of 
detail  their  essential  nature  and  qualities. 

§  101.  It  must  be  premised  that  in  most  instances  the 
legal  primary  right,  and  the  corresponding  but  different 
equitable  primary  right,  arise  from  the  same  facts,  circum- 
stances, acts,  or  events  which  are  the  occasion  of  both. 
But  in  some  instances,  facts,  circumstances,  or  events 
which  are  not  the  occasion  of  any  legal  right  at  all  give 
rise  to  a  primary  right  in  equity.^  With  respect  to  the 
equitable  primary  rights  taken  as  a  whole,  it  is  proper  to 
say  that  most  of  them  are  simply  different  from  or  addi- 
tio7ial  to  those  which  exist  at  law;  they  do  not  contradict 
any  rules  upon  the  same  subject-matter  which  the  common 

§  101,  1  A  familiar  example  will  illustrate  both  of  these  cases.  From 
the  same  fact,  namely,  a  valid  written  contract  for  the  sale  of  land,  there 
arise  the  legal  right  of  the  vendee,  and  also  his  very  different  equitable 
right.  From  a  verbal  contract  for  the  sale  of  land  when  part  performed, 
there  arises  no  legal  right  whatever;  but  these  facts,  the  verbal  contract 
together  with  the  part  performance,  are  the  occasion  of  an  equitable  right 
in  the  vendee  which  is  even  a  right  of  property,  an  equitable  estate  in 
the  land  itself. 


§  102  EQUITY   JURISPKUDENCE.  112 

law  provides;  but  they  are  supplementary,  touching. upon 
particulars  in  relation  to  which  the  law  is  silent.  Between 
this  class  of  equitable  rights  and  the  corresponding  legal 
rights  there  is,  therefore,  no  conflict;  each  is  absolutely 
true  at  all  times  and  in  all  places ;  equity  courts  recognize 
and  administer  the  one,  and  law  courts  the  other,  without 
clashing  or  discord.  With  respect  to  another  portion  of 
these  primary  equitable  rules  and  rights,  it  must  be  said 
that  they  are  not  merely  additional  to,  but  they  are  in 
actual  conflict  with,  the  legal  rules  and  rights  concerning 
the  same  subject-matter,  or  arising  from  the  same  circum- 
stances; between  the  kind  of  equitable  rules  and  rights  and 
the  corresponding  portions  of  the  law,  there  is,  therefore, 
an  antagonism ;  the  equity  courts  admit  and  uphold  a  par- 
ticular right  as  resulting  from  a  certain  state  of  facts, 
which  the  law  courts  not  only  refuse  to  recognize,  but  which 
they  would  deny  and  oppose.  This  contrariety  existed  to 
a  much  larger  extent  in  the  infancy  of  the  system  than  it 
does  now;  it  has  gradually  become  less  as  the  law  itself 
has  grown  more  liberal  and  equitable.  That  there  should 
be  any  such  conflict  between  two  departments  of  a  mu- 
nicipal law  is  undoubtedly  a  blemish  upon  the  national 
jurisprudence;  but  this  condition  had  a  strictly  historical 
origin,  and  the  very  progress  towards  perfection  largely 
consists  in  the  elimination  of  these  instances  of  antagonism. 
It  should  be  remembered,  also,  that  equity  sometimes  fur- 
nishes its  remedies  for  the  violation  of  primary  rights* 
which  are  strictly  legal,  as,  for  example,  in  many  cases  of 
accounting. 

§  102.  A  few  examples  will  serve  to  illustrate  the  fore- 
going description  of  equitable  rules  and  rights,  and  will 
exhibit  its  correctness  in  the  clearest  manner.  Although 
the  first  of  the  cases  selected  no  longer  exists,  it  is  none 
the  less  appropriate  for  the  purpose  of  showing  the  exact 
nature  of  equitable  doctrines  in  their  relations  with  the 
law.    As  has  already  been  mentioned,  at  an  early  day  the 


113  THE    CONSTITUENT    PAETS    OF    EQUITY.  §  102 

law  declared  that  when  a  debtor  on  a  sealed  obligation 
had  paid  the  debt,  but  had  failed  to  take  an  acquittance 
under  seal,  or  a  surrender  of  the  instrument,  he  was  still 
liable,  and  the  creditor  could  recover  the  amount  a  second 
time  by  action.  Equity  interfered  and  gave  the  debtor  the 
remedy  of  a  perpetual  injunction  against  any  action  at  law, 
and  perhaps  the  delivery  up  or  cancellation  of  the  bond. 
It  is  not  the  form  of  the  remedy  to  which  I  now  call  atten- 
tion, but  the  primary  equitable  right  for  the  maintenance 
of  which  the  remedy  was  given.  Compare  the  rights  and 
duties  of  the  two  parties  at  law  and  in  equity.  The  law 
said  that  notwithstanding  the  payment  already  made,  the 
primary  right  of  the  creditor  arising  from  the  contract  to 
demand  the  money,  and  the  primary  duty  of  the  debtor  to 
pay  it,  still  existed  in  full  force,  and  it  therefore  gave  the 
remedial  right  of  an  action  to  collect  the  debt.  Equity  said 
the  exact  opposite  of  this.  It  declared  that  the  primary 
right  of  the  creditor  and  the  primary  duty  of  the  debtor  had 
been  ended;  that  the  obligation  of  the  debtor  to  pay  had 
been  destroyed,  and  in  its  place  there  had  arisen  a  right  to 
have  the  evidence  of  that  obligation  canceled  or  to  have 
evidence  of  the  payment  created  in  a  formal  manner.  It 
therefore  gave  to  the  debtor  the  remedial  right  and  the 
remedy  of  an  injunction  and  of  a  cancellation.  It  is  an 
entirely  mistaken  and  even  absurd  explanation  of  this  and 
other  analogous  cases,  to  assert  that  equity  simply  granted 
a  remedy  which  the  law  did  not  give.  Remedies  are  not 
conferred  by  equity  courts,  any  more  than  by  law  courts, 
unless  a  primary  right  and  duty  exist,  which  have  been 
violated,  so  that  a  remedial  right  arises  from  such  viola- 
tion. Equity  did  not,  in  this  case,  interpose  its  remedy 
in  favor  of  the  debtor  for  the  violation  of  any  legal  right; 
for  the  law  most  peremptorily  affirmed  that  the  primary 
right  of  the  creditor,  which  it  gave  him  on  the  occasion 
of  the  sealed  contract  being  executed,  was  in  full  force, 
and  that  the  primary  duty  which  it  imposed  upon  the  debtor 

1—8 


§  103  EQUITY    JURISPRUDENCE.  114 

remained  unaffected.  Equity  as  empliatically  denied  all 
this,  and  asserted  that  no  such  primary  right  and  duty 
were  left  existing,  but  that  the  position  of  the  two  parties 
had  been  exactly  reversed.  There  was  a  plain  and  direct 
conflict  in  the  primary  rights  and  duties  flowing  from  the 
same  facts  and  events.  It  is  true,  this  particular  instance 
of  antagonism  no  longer  exists,  since  the  absurd  rule  of 
the  law  has  long  been  changed,  so  as  to  harmonize  with 
the  equitable  doctrine ;  but  I  have  thus  dwelt  upon  the  case 
at  large,  because  it  is  a  most  admirable  illustration  of  the 
class  of  equitable  primary  rights  which  are  in  conflict  with, 
and  not  merely  supplementary  to,  the  legal  primary  rights 
resulting  from  the  same  circumstances. 

§  103.  I  give  another  example  of  the  same  class.  Under 
the  prohibition  of  the  Statute  of  Frauds,  a  contract  for 
the  sale  of  land,  when  not  in  writing,  cannot  be  enforced  in 
law,  even  though  part  performed.  It  makes  no  difference 
whether  the  statute  says,  as  in  England  and  in  some  of  the 
states,  that  no  action  can  be  maintained  on  such  an  agree- 
ment, or  says,  as  in  the  other  states,  that  the  agreement 
is  void ;  the  result  is  practically  the  same  in  either  form  of 
the  statute :  the  verbal  contract  is  no  contract  at  law,  but  is 
simply  a  nullity. ^  Equity  speaks  a  very  different  language. 
It  says  that  such  a  verbal  contract,  if  part  performed  in  a 
proper  manner,  shall  be  enforced.  The  processes  of  rea- 
soning through  which  courts  of  equity  have  reached  this 

§  103,  1 1  am,  of  course,  aware  of  the  theory  so  often  stated  by  courts, 
that  the  statute  only  affects  the  evidence,  and  not  the  right.  But  a  right 
which  cannot  under  any  possible  circumstances  be  enforced  is  certainly 
no  right.  This  purely  technical  doctrine  in  relation  to  the  statute  was 
invented  in  order  to  admit  a  legal  basis  for  certain  collateral  results  flow- 
ing from  a  verbal  contract;  it  has  never  been  carried  to  the  extent  of 
maintaining  that  any  legal  right  arose  from  such  an  agreement.  It  is 
strictly  correct,  therefore,  to  say  that  with  either  form  of  the  statute  no 
legal  primary  right  results  from  a  verbal  contract  within  the  statute ;  for 
if  there  were  any  such  right,  its  violation  would  give  rise  to  a  legal 
remedy,  which  is  impossible. 


115  THE    CONSTITUENT   PARTS    OF    EQUITY.  §  103 

conclusion,  and  the  theory  which  they  have  adopted  to 
reconcile  their  judicial  action  with  the  prohibitions  of  the 
statute,  are  wholly  immaterial;  the  result  is  patent  upon 
any  theory,  that  equity  from  certain  acts  and  events  creates 
primary  rights  and  duties  in  the  parties  .diametrically  op- 
posed in  their  nature  to  those  which  the  law  creates  on  the 
occasion  of  the  same  facts.  The  law  declares  that  from 
the  verbal  contract,  although  part  performed,  no  primary 
right  arises  in  favor  of  either  party,  and  no  corresponding 
duty  devolves  upon  either;  and  if  either  refuses  to  do 
what  he  has  thus  verbally  promised,  the  law  admits  no 
remedial  right  in  the  other,  and  gives  him  no  remedy! 
Very  different  is  the  result  in  equity.  Whatever  be  the 
grounds  of  its  action,  the  plain  fact  is,  that  when  such  a 
verbal  agreement  has  been  properly  part  performed,  say 
by  the  purchaser,  equity  recognizes  in  him  exactly  the  same 
primary  right  which  would  have  existed  if  the  contract 
had  been  written, — the  right  to  have  the  very  thing  done 
which  was  agreed  to  be  done, — and  devolves  upon  the 
vendor  exactly  the  same  duty  which  would  then  have 
rested  upon  him ;  and  if  this  primary  right  or  duty  is  vio- 
lated by  the  vendor's  refusal  to  perform,  equity  gives  to 
the  vendee  its  remedy  of  a  specific  enforcement.  The 
same  is  true  when  the  part  performance  has  been  by  the 
vendor.  In  this  instance,  also,  the  primary  rights  and 
duties  created  by  equity  are  not  only  additional  to,  but 
in  direct  conflict  with,  those  created  by  the  law  between 
the  same  parties  under  the  same  circumstances.^  In  both 
the  foregoing  examples  the  equitable  rights  and  duties 
belong  to  the  class  of  ''Personal," — Rights  m  personam, 
being  against  a  specific  or  determined  person. 

§  103,     (a)       Equitable      primary  Sanguinetti  v.  Eossen,  12  Cal.  App 

rights,    arising   from    part   perform-  623,  107  Pae.  560;  in  Miller  v.  Jack 

ance   of   parol   contract   for   sale   of  son  Township,  178  Ind.  503,  99  N.  E 

land,    in    direct    conflict    with    legal  102.     Cited,     also,     in     D'Elissa     v 

primary   rights.     This   paraiiraph   is  D'Amato,  85  N.  J.  Eq.  466,  97  Atl 

cited,    by    way    of    illustration,    in  41. 


§  lOi  EQUITY    JUKISPRUDENCE.  116 

§  104.  Anotlier  remarkable  example  of  equitable  primary 
lights,  in  direct  conflict  with  those  created  by  the  law  under 
the  same  facts,  is  shown  in  those  contracts  of  married 
women  which  are  treated  as  valid  and  enforced  by  equity. 
At  the  common  la^w  every  agreement  of  a  married  woman 
was  simply  a  nullity,  not  merely  voidable,  but  absolutely 
void.  Equity  did  not  in  a  direct  manner  abolish  this  legal 
dogma.  It  did,  however,  in  the  cases  reached  by  its  doc- 
trine, create  a  primary  right  and  duty  from  the  contract, 
which,  being  violated,  it  enforced  in  its  own  manner  and  by 
its  own  peculiar  remedy;  it  even  enforced  an  agreement 
between  the  husband  and  wife,  if  beneficial  to  her  rights  of 
property.  So  far  as  equity  went,  there  was  thus  a  direct 
antagonism  between  its  rules  and  those  of  the  law.  The 
law  said  most  peremptorily  that  no  right  or  duty  arose 
from  the  transaction.  Equity  said  that  the  contract  was 
the  occasion  of  a  full  right  and  duty  of  performance,  and 
although  in  deference  to  the  common  law  it  did  not  enforce 
the  duty  against  the  wife  personally,  it  enforced  it  against 
her  separate  estate,  upon  which  it  was  a  charge.  And  in 
agreements  made  by  the  married  woman  for  the  benefi^t 
of  her  separate  estate,  equity  gave  her  its  remedy  of 
specific  performance.!  * 

§  104,  1  I  add  one  more  striking  illustration.  When  there  are  two  or 
more  joint  promisors  and  debtors, — A,  B,  and  C, — and  one  of  them,  C, 
dies,  then  at  the  common  law  all  his  liability  ceases  absolutelj'.  The  cred- 
itor can  maintain  no  action  at  law,  under  any  circumstances,  against  his 
personal  representatives  to  recover  the  debt  or  any  portion  thereof;  the 
creditor's  sole  primary  right  growing  out  of  the  original  contract,  and  his 
sole  remedy  by  action,  are  against  the  survivors,  A  and  B.  Equity,  how- 
ever, has  altered  these  relations.  Equity  regards  the  original  demand  of 
the  creditor  as  still  subsisting  against  the  estate  of  the  deceased  joint 
debtor,  C,  and  such  estate  as  still  remaining  bound  by  the  obligation;  and 
therefore  enables  the  creditor  to  maintain  a  suit  against  the  representa- 
tives of  C,  for  the  purpose  of  recovering  the  amount  due.  Here  the 
antagonism  is  plain  and  direct;  and  it  makes  no  difference  whether  we 

§  104,  (a)  This  paragraph  is  cited,  arguendo,  in  Miller  v.  Jackson  Town- 
ship, 178  Ind.  503,  99  N.  E.  102. 


117  THE    CONSTITUENT   PARTS    OF    EQUITY.  §  105 

§  105.  I  pass  to  examples  of  other  kinds.  Wherever  the 
books  or  the  courts  speak  of  ''equitable  estates,"  either 
in  land  or  in  chattels,  as  held  by  a  person,  there  are  in 
reality  equitable  real  rights,  rights  in  rem,  rights  of  prop- 
erty, in  the  land  or  chattels,  different  from  or  additional 
to  the  rights  arising  from  the  same  facts  which  the  law  con- 
fers upon  the  same  party.  The  kinds  and  degrees  of  these 
equitable  rights  of  property  are  numerous,  ranging  from 
the  most  complete,  beneficial  ownership,  simply  wanting  the 
legal  title,  through  various  grades  to  mere  liens;  the  spe- 
cial rules  concerning  them  constitute  an  important  part  of 
equity  jurisprudence.  I  shall  mention  a  few  examples  for 
purposes  of  illustration.  The  most  familiar  case  in  this 
country  is  that  of  the  ordinary  executory  contract  for  the 
sale  of  land.  The  law  recognizes  from  this  transaction 
nothing  but  "personal"  rights  and  duties.  As  long  as 
the  agreement  remains  executory,  the  vendee  acquires  no 
right  of  property  in  the  land,  nor  the  vendor  in  the  pur- 
chase-money; each  party  has  the  right  against  the  other 
that  the  contract  shall  be  fulfilled  according  to  its  terms; 
but  for  the  violation  of  this  primary  right  the  only  legal 
remedy  is  a  pecuniary  compensation.  The  view  which 
equity  takes  of  the  juridical  relations  resulting  from  the 
transaction  is  widely  different.  Applying  one  of  its  fruit- 
ful principles,  that  what  ought  to  be  done  is  regarded  as 

adopt  the  English  rule  that  the  creditor  may  sue  the  representatives  of 
the  deceased  at  his  election,  or  the  rule  prevailing  in  some  of  our  states, 
that  the  creditor  can  only  sue  C's  representatives,  when  he  is  unable  to 
enforce  his  demand  against  the  survivors.  In  either  form  of  the  rule, 
equity  regards  the  primary  right  of  the  creditor  gi-owing  out  of  Ihe 
original  contract,  and  the  obligation  of  the  deceased  debtor,  as  still  exist- 
ing, and  therefore  gives  its  remedy  by  suit;  while  the  law  regards  such 
right  and  obligation  as  wholly  gone,  and  therefore  refuses  any  remedy. 
It  is  true  that  the  legislature,  in  some  states,  has  abrogated  this  legal 
doctrine,  and  has  made  the  estate  of  the  deceased  joint  debtor  liable  at 
law.  Similar  remarks  might  be  made  concerning  the  case  of  two  or  more 
joint  creditors,  where  one  of  them  dies,  and  the  contrasting  doctrines  of 
law  and  of  equity  applicable  thereto. 


§  105  EQUITY    JUKISPRUDENCE.  118 

done,  equity  says  that  from  the  contract,  even  while  yet 
executory,  the  vendee  acquires  a  ''real"  right,  a  right  of 
property  in  the  land,  which  though  lacking  a  legal  title,  and 
therefore  equitable  only,  is  none  the  less  the  real,  beneficial 
ownership,  subject,  however,  to  a  lien  of  the  vendor  as  se- 
curity for  the  purchase-price  as  long  as  that  remains  un- 
paid. This  property  in  the  land,  upon  the  death  of  the 
vendee,  descends  to  his  heirs,  or  passes  to  his  devisees,  and 
is  liable  to  the  dower  of  his  widow.*  The  vendor  still  holds 
the  legal  title,  but  only  as  a  trustee,  and  he  in  turn  acquires 
an  equitable  ownership  of  the  purchase-money;  his  prop- 
erty, as  viewed  by  equity,  is  no  longer  real  estate,  in  the 
land,  but  personal  estate,  in  the  price,  and  if  he  dies  be- 
fore payment,  it  goes  to  his  administrators,  and  not  to  his 
heirs.  In  short,  equity  regards  the  two  contracting  parties 
as  having  changed  positions,  and  the  original  estate  of  each 
as  having  been  "converted,"  that  of  the  vendee  from  per- 
sonal into  real  property,  and  that  of  the  vendor  from  real 
into  personal  property.^  Although  these  primary  rights 
which  equity  thus  creates  are  very  different  from  those 
which  the  law  recognizes,  there  is  still  no  conflict  or  antag- 
onism between  the  two.<^  While  equity  gives  to  the  pur- 
chaser a  property  in  the  land,  and  furnishes  him  with  its 
specific  remedies  to  maintain  and  enforce  that  ownership, 
at  the  same  time  it  does  not  deny  nor  interfere  with  his 
legal  primar}''  right  against  the  vendor  personally  arising 
from  the  contract.  The  vendee  in  fact  has  an  election. 
Relying  upon  the  mere  personal  primary  right  of  contract, 
he  or  his  executors  or  administrators  may  sue  in  a  court 

§  105,  (a)  The   text   is   quoted  in  Pac.  732.     The  language  of  the  text 

Parks  V.  Sraoot's  Admrs.,  105  Ky.  63,  is    stated,    in    substance,    in    Ayles- 

48  S.  W.  146;  Walker  v.  Goldsmith,  worth    v.    Aylesworth    (Ind.    App.), 

14  Or.  125,  12  Pac.  537.  106   K   E.    907. 

§  105,   (b)   The   text   is    quoted   in  §  105,   (c)   See,   further,   as  to  the 

Parks  V.  Smoot's  Admrs.,  105  Ky.  63,  equitable    estates    arising    from    the 

48   S.   W.    146;    Clapp   v.   Tower,   11  executory   contract   for   the   sale   of 

N.    D.    556,    93    N.    W.    862;    cited,  land,    post,    §§367,    368,    372,    1160, 

Schenck  v.  Wicks,  23  Utah,  576,  05  1161,  1260,  1261,  1263,  1406. 


119  THE    CONSTITUENT    PARTS    OF    EQUITY.       §§106,107 

of  law  to  recover  damages  for  a  violation  of  the  agree- 
ment; or  relying  upon  the  real  right,  his  ownership  of  the 
land,  he  or  his  heirs  may  sue  in  a  court  of  equity,  and  pro- 
cure his  ownership  to  be  fully  established,  and  the  legal 
muniments  of  his  title  perfected. 

§  106.  In  all  eases  of  implied  trusts  there  is  the  same 
diiference  between  the  legal  primary  right,  purely  "per- 
sonal" in  its  nature,  and  the  equitable  estate,  or  right  of 
property.  One  instance  will  illustrate  the  entire  class. 
A  receives  from  B  a  sum  of  money  under  an  agreement 
to  purchase  therewith  a  parcel  of  land  for  B,  and  to  take 
the  conveyance  in  the  latter 's  name;  he  purchases  the  land, 
but  takes  the  deed  to  himself  in  violation  of  his  duty,  and 
with  the  design  of  obtaining  all  the  benefit  and  of  retaining 
the  ownership.  The  law  under  these  and  all  similar  cir- 
cumstances sees  only  a  contract,  express  or  implied,  be- 
tween the  parties,  with  the  purely  '^ personal"  rights  which 
spring  from  contract.  B  has  no  property  in  the  land,  and 
his  only  legal  remedy  is  compensation  by  dainages.  In 
equity,  however,  B  acquires  a  "real"  right,  an  estate  in 
the  land,  which  is  regarded  as  the  true  and  beneficial  owner- 
ship, with  all  the  incidents  of  real  property;  and  he  can 
establish  that  ownership  by  compelling  A  to  convey  the 
legal  title  and  deliver  the  possession. 

§  107.  The  same  and  sometimes  even  a  greater  differ- 
ence between  the  legal  and  equitable  rights  exists  in  all  in- 
stances, so  common  in  England,  but  no  longer  permitted 
in  many  American  states,  but  seldom  known,  even  if  theo- 
retically possible,  in  the  others,  of  express  passive  trusts 
in  lands.  At  law  the  cestui  que  trust  never  acquires  any 
property  in  the  land  so  long  as  the  trust  is  subsisting,  and 
in  many  cases  he  obtains  no  right  whatever,  either  of  prop- 
erty or  of  contract.  In  equity,  however,  the  cestui  que 
trust  is  the  real  owner ;  his  primary  right  ^is  one  of  prop- 
erty in  the  land,  either  in  fee,  for  life,  or  for  years.  An- 
other exceedingly  instructive  example  is  the  estate  of  the 


§  108  EQUITY   JURISPRUDENCE.'  120 

mortgagor  created  by  equity,  while  the  law,  unless  altered 
by  statute,  regards  all  the  property  as  vested  in  the  mort- 
gagee. I  need  not  add  any  more  examples.  I  have  already 
given  a  sufficient  number  and  variety  to  illustrate  and  show 
the  truth  of  my  main  proposition, — that  equity  is  not 
wholly  a  system  of  remedies;  but  that  it  consists  in  part 
of  primary  rights  and  duties,  and  of  the  rules  concerning 
them,  differing  from,  sometimes  conflicting  with,  but  more 
often  additional  to,  the  primary  rights,  duties,  and  rules 
relating  to  the  same  matters  established  by  the  law. 

§  108.  II.  Equitable  Remedies. — Equity  consists,  to  a 
very  great  extent,  of  Eemedies  and  Eemedial  Eights  dif- 
ferent from  any  which  the  law  administers  by  means  of  its 
ordinary  actions  ;i  although  it  does,  under  certain  circum- 

§  108,  1  I  intentionally  pass  by  the  specific  legal  remedies  which  the 
law  gives  by  means  of  Mandamus,  Quo  "Warranto,  and  certain  other  special 
proceedings,  and  which  have  some  general  resemblance  to  the  reliefs 
■granted  by  equity. 

The  principle  of  equitable  primary  rights,  as  distinguished  from  legal 
primary  rights,  and  of  equitable  remedies,  was  very  clearlj'  recognized  and 
illustrated  by  the  doctrine  concerning  the  liability  of  a  married  woman's 
separate  estate  to  be  appropriated  in  equity  in  satisfaction  of  her  con- 
tracts, by  the  English  Court  of  Appeal  in  the  veiy  recent  case  of  Ex  parte 
Jones,  L.  R.  12  Ch.  Div.  484,  488-490.  Speaking  of  the  nature  and 
grounds  of  this  equitable  liability,  James,  L.  J.,  said :  "If  she  is  not  liable 
to  be  sued  as  a  feme  sole  in  what  used  formerly  to  be  called  a  common- 
law  action,  she  is  not  liable  to  be  sued  for  a  debt  at  all.  In  equity  the 
liability  was  to  have  her  separate  estate  taken  from  her  for  the  benefit 
of  the  person  with  whom  she  had  contracted  on  the  faith  of  it.  That  was 
a  special  equitable  remedy,  arising  out  of  a  special  equitable  right.  But 
the  married  woman  who  contracts  in  that  way  is  not  a  debtor  in  any  sense 
of  the  word"  (that  is,  she  is  not  liable  under  a  contract  binding  at  law, 
which  creates  the  legal  liability  of  indebtedness  and  the  corresponding  legal 
right  of  a  creditor).  Brett,  L.  J.,  said:  The  equitable  procedure  "did 
not  enable  any  one  to  sue  a  married  woman  as  -iipon  and  for  a  debt  in  a 
court  of  equity.  It  was  a  peculiar  remedy  against  the  separate  property 
of  the  married  woman  so  long  as  it  existed,  but  it  was  not  a  remedy  against 
her  as  and  for  a  debt." 

Cotton,  L.  J.,  said :  "A  debtor  must  be  a  person  who  can  be  sued  per- 
sonally for  a  debt,  and  who  is  liable  to  all  the  consequences  of  a  personal 


121  THE    CONSTITUENT   PARTS    OF   EQUITY.  §  108 

stances,  grant  remedies  which  are  legal  in  their  nature,  and 
are  capable  of  being  conferred  by  a  judgment  at  law, 
namely,  a  mere  recovery  of  money,  or  of  the  possession  of 
specific  land  or  chattels.  Many  of  the  ordinary  equitable 
remedies  are  derived  directly  from  the  nature  of  the  pri- 
mary right  which  they  are  intended  to  protect.  For  ex- 
ample, in  the  case  of  a  contract  for  the  purchase  of  land, 
or  of  an  implied  trust  in  land,  or  of  any  other  transaction 
from  which  the  equitable  primary  right  consists  in  a  right 
of  property,  this  equitable  estate,  although  the  real,  bene- 
ficial ownership  is  subject  to  some  great  inconveniences 
which  lessen  its  value,  the  holder  of  the  legal  title  in  trust 
for  the  equitable  owner  cannot  defeat  the  latter 's  right 
as  long  as  he  retains  such  title  in  his  own  hands,  but  he  can 
convey  it  to  another  bona  fide  purchaser,  and  thus  cut  off 
the  existing  equitable  estate.  To  prevent  this,  and  to 
secure  his  full  enjoyment  of  the  property,  a  peculiar  rem- 
edy is  given  to  the  equitable  owner,  by  which  he  establishes 
his  right,  perfects  his  interest,  compels  a  conveyance  of 
the  legal  title,  and  a  transfer  of  the  possession,  if  neces- 
sary, and  thus  acquires  a  full  and  indefeasible  estate,  legal 
as  well  as  equitable,  in  the  land.^  A  large  class  of  reme- 
dies are  thus  based  upon  and  exactly  fitted  to  the  nature 
of  the  primary  right;  these  remedies  are  distinctively 
equitable ;  and  their  intimate  correspondence  with  the  pri- 
mary rights  which  they  enforce  has,  more  than  anything 
else  perhaps,  led  to  the  mistake,  alluded  to  in  a  former 
paragraph,   of  confounding  all  equitable  primary  rights 

judgment  against  him.  But  that  is  not  at  all  the  position  of  a  married 
woman,  even  though  she  has  separate  estate.  ...  It  is  not  the  woman,  as 
a  woman,  who  becomes  a  debtor,  but  her  engagement  has  made  that  par- 
ticular part  of  her  property  which  is  settled  to  her  separate  use  a  debtor 
and  liable  to  satisfy  the  engagement." 

§108,  (a)  This   paragraph  of   the  a   municipality),    and   in   Tennant's 

text  is  cited  in  Provisional  Munici-  Heirs  v,  Fretts,  67  W.  Va.  569,  1-iO 

pality  of  Pensacola  v.  Lehman,   57  Am.  St.  Rep.  979,  29  L.  E.  A.  (N.  S.) 

Fed.   324,    330,    13   U.   S.    App.    411,  G25,  68  S.  E.  387. 
(suit  for  specific  performance  against 


§  109  EQUITY"   JURISPRUDENCE.  122 

with  remedial  ones,  and  of  supposing  that  equity  is  wholly 
a  system  of  remedies. 

§  109.  The  distinguishing  characteristics  of  legal  rem- 
edies are  their  uniformity,  their  unchangeableness  or  fixed- 
ness, their  lack  of  adaptation  to  circumstances,  and  the 
technical  rules  which  govern  their  use.  The  legal  remedies 
by  action  are,  in  fact,  only  two:  recovery  of  possession  of 
specific  things,  land  or  chattels,  and  the  recovery  of  a  sum 
of  money.  When  a  person  is  owner  of  land  or  of  chattels 
in  such  a  way  that  he  is  entitled  to  immediate  possession, 
he  may  recover  that  possession;  but  since  the  action  of 
''Ejectment"  has  taken  the  place  of  the  old  real  actions, 
a  recovery  of  the  land  by  its  means  does  not  necessarily 
determine  or  adjudge  the  title,  and  in  a  recovery  of  chat- 
tels by  the  action  of  replevin,  the  title  is  only  determined 
in  an  incidental  manner.^  For  all  other  violations  of  all 
possible  primary  rights,  the  law  gives,  as  the  only  remedy, 
the  recovery  of  money,  which  may  be  either  an  ascertained 
sum  owed  as  a  debt,  or  a  sum  by  way  of  compensation, 
termed  damages.  Equitable  remedies,  on  the  other  hand, 
are  distinguished  by  their  flexibility,  their  unlimited 
variety,  their  adaptability  to  circumstances,  and  the  nat- 
ural rules  which  govern  their  use.     There  is  in  fact  no 

§  109,  1  It  should  be  remembered  that  I  am  speaking  of  the  common- 
law  forms  of  action,  and  not  of  the  system  introduced  by  the  I'eforraed 
procedure.  Since  in  the  action  of  ejectment  the  plaintiff  was  a  fictitious 
person,  and  not  the  real  party  in  interest,  a  judgment  was  no  bar  to  any 
number  of  succeeding  actions;  it  required  a  suit  in  equity  and  a  perpetual 
injunction  to  restrain  the  continuous  bringing  of  such  actions  in  a  given 
case,  and  to  declare  the  title.  In  the  American  states,  statutes  have  put  a 
limit  upon  the  number  of  separate  actions  which  may  be  brought.  Under 
the  reformed  procedure,  the  action  to  recover  laud  really  has  nothing  in 
common  with  "ejectment";  it  rather  resembles  the  old  "real  action"  in 
detennining  the  title  as  well  as  the  possession,  and  it  is  so  regarded  in 
some  of  the  states.  But  by  a  strange  inconsistency,  the  statutes  of  other 
states  treat  it  as  only  a  simplified  ejectment,  and  the  judgment  recovered 
by  it  as  not  finally  adjudicating  upon  the  title.  In  a  few  of  the  states, 
the  old  common-law  "real  action"  is  still  used  instead  of  ejectment. 


123         THE  CONSTITUENT  PARTS  OF  EQUITY.        §  110 

limit  to  their  variety  and  application;  the  court  of  equity 
has  the  power  of  devising  its  remedy  and  shaping  it  so  as 
to  fit  the  changing  circumstances  of  every  case  and  the 
complex  relations  of  all  the  parties.^' 

§  110.  Notwithstanding  this  unlimited  power  of  expan- 
sion and  invention,  there  are  certain  species  of  equitable 
remedies  which  have  become  well  established  and  famil- 
iarly known,  and  which  are  commonly  designated  by  the 
term  "equitable  remedies"  whenever  it  is  used.  They 
may  be  separated  into  three  classes:  1.  Those  which  are 
entirely  different  from  any  kind  of  reliefs  known  and 
granted  by  the  law.  Of  this  class  are  the  preventive  rem- 
edy of  Injunction,  the  restorative  remedy  of  Mandatory 
Injunction,  the  remedies  of  Reformation,  Specific  Perform- 
ance, and  many  others.^  2.  Those  which  the  legal  proce- 
dure recognizes,  but  does  not  directly  confer,  and  the  bene- 
ficial results  of  which  it  obtains  in  an  indirect  manner.  A 
familiar  example  is  the  relief  of  Rescission  or  Cancella- 
tion. A  court  of  equity  entertains  a  suit  for  the  express 
purpose  of  procuring  a  contract  or  conveyance  to  be  can- 
celed, and  renders  a  decree  conferring  in  terms  that  exact 
relief.    A  court  of  law  entertains  an  action  for  the  re- 

§  109,  (a)  Flexibility  of  Equita"ble  (remedy  by  redemption  and  recon- 
Eemedies,  and  their  adaptability  to  veyance  where  land  has  been  con- 
circumstances.  The  text  is  quoted  veyed  with  trust  for  payment  of 
in  The  Salton  Sea  Cases,  172  Fed.  surplus  on  sale  thereof  to  grantor). 
820,  97  C.  C.  A.  242  (injunction  The  text  is  cited  in  Boring  v.  Ott, 
against  overflow  of  land,  decree  pro-  138  Wis.  260,  19  L.  R.  A.  (N.  S.) 
tecting  all  rights);  in  Sourwine  v.  1080,  119  N.  W.  865  (enjoining  judg- 
Supreme  Lodge,  12  Ind.  App.  447,  ment  because  of  perjury). 
54  Am.  St.  Rep.  532,  4;0  N.  E.  646;  §110,  (a)  This  paragraph  of  the 
in  Turner's  Admr.  v.  Citizens'  Bank,  text  is  cited  in  Provisional  Munici- 
111  Va.  184,  68  S.  E.  407  (devisees  pality  of  Pensacola  v.  Lehman,  57 
whose  shares  have  been  lost  by  elec-  Fed.  324,  330,  13  U.  S.  App.  411, 
tion ,  entitled  to  compensation  for  6  C.  C.  A.  349  (suit  for  specific  per- 
their  loss  out  of  fund  in  court);  in  formance  against  a  municipality). 
Campbell  v.  Alsop's  Admrs.,  116  Va.  Cited,  also,  in  Mc Williams  v.  Burnes, 
39,  81  S.  E.  31;  in  Weltner  v.  Thur-  115  Mo.  App.  6,  90  S.  W.  735; 
mond,  17  Wyo.  268,  129  Am.  St.  Rep.  Shepard  v.  Pabst,  149  Wis.  35,  135 
1113,    98    Pac.    590,    99    Pac.     1128  N.  W.  158. 


§  110  EQUITY   JUBISPRUDENCE.  124 

covery  of  the  possession  of  chattels,  or,  under  some  cir- 
cumstances, for  the  recovery  of  land,  or  for  the  recovery 
of  damages,  and  although  nothing  is  said  concerning  it, 
either  in  the  pleadings  or  in  the  judgment,  a  contract  or  a 
conveyance,  as  the  case  may  be,  is  virtually  rescinded ;  the 
recovery  is  based  upon  the  fact  of  such  rescission,  and 
could  not  have  been  granted  unless  the  rescission  had  taken 
place.  Here  the  remedy  of  cancellation  is  not  expressly 
asked  for,  nor  granted  by  the  court  of  law,  but  all  its  effects 
are  indirectly  obtained  in  the  legal  action. ^  ^  It  is  true, 
the  equitable  remedy  is  much  broader  in  its  scope,  and 
more  complete  in  its  relief;  for  its  effects  are  not  confined 
to  the  particular  action,  but  by  removing  the  obnoxious 
instrument  they  extend  to  all  future  claims  and  actions 
based  upon  it.  3.  Those  which  are  substantially  the  same 
both  in  equity  and  at  the  law.  Familiar  examples  of  this 
class  are  the  partition  of  land  among  co-owners,  and  the 
admeasurement  of  dower,  in  which  the  final  relief  granted 
by  equity  is  the  same  as  that  obtained  through  the  now 
almost  obsolete  legal  actions ;  2  the  process  of  accounting 
and  determining  the  balance  in  favor  of  one  or  the  other 

§  110,  1  It  would  perhaps  be  more  correct  to  say  that  the  legal  judg- 
ment proceeded  upon  the  assumption  that  one  of  the  parties  had  himself 
rescinded  the  contract  or  conveyance  prior  to  the  suit,  and  that  he  was 
justified  in  so  doing;  but  this  explanation  does  not  alter  the  result  or 
modify  the  statement  of  the  test.  In  either  theory,  the  legal  procedure 
recognizes  the  rescission  as  a  fact,  and  its  benefits  are  secured  indirectly 
by  the  judgment;  as  in  actions  by  defrauded  vendors  to  recover  the  goods 
or  their  value. 

§  110,  2  The  ancient  legal  actions  of  partition  and  admeasurement  of 
dower,  though  long  discarded  in  England,  are  still,  retained  in  a  modified 
form  in  Massachusetts,  Pennsylvania,  and  perhaps  in  two  or  three  addi- 
tional states.  In  other  states,  where  the  reformed  procedure  has  not 
been  introduced,  "ejectment"  is  sometimes  used  for  the  same  purpose. 

§  110,  (b)  Rescission  at   law   and  This  paragraph  is  cited  in  Wataon 

in    equity.     The    text    is    quoted    in  v.  Borah,  37  Okl.  357,  132  Pac.  347 

State    V.    Snyder,    66    Tex.    687,    18  (cancellation);  Taylor  v.  Brown,  92 

S.  W.  106,  108;  in  Bruner  v.  Miller,  Ohio  287,  110  N.  E.  739. 
59  W.  Va.  36,  52  S.  E.  995. 


125  THE    CONSTITUENT    PARTS    OF   EQUITY.  §  111 

party;*  and  even,  under  special  circumstances,  the  award 
of  pecuniary  damages  expressly.^  This  mode  of  classi- 
fying equitable  remedies  was  both  common  and  convenient 
while  the  jurisdictions  of  law  and  equity  were  wholly  dis- 
tinct and  confided  to  different  tribunals,  but  has  lost  much 
of  its  efficacy  since  they  have  been  conferred  upon  the  same 
court,  and  under  the  reformed  procedure,  which  coml)ines 
legal  and  equitable  remedies  in  one  action,  it  has  become 
positively  misleading, 

§  111.  Abandoning,  therefore,  this  method  of  arranging 
and  describing  remedies,  as  no  longer  adapted  to  the  ad- 
ministration of  equity  jurisprudence  at  the  present  day, 
I  shall  classify  them  according  to  their  essential  natures. 
Equity  has  followed  the  true  principle  of  contriving  its 
remedies  so  that  they  shall  correspond  both  to  the  primary 
right  of  the  injured  party,  and  to  the  wrong  by  which  that 
right  has  been  violated.  It  has,  therefore,  never  placed 
any  limits  to  the  remedies  which  it  can  grant,  either  with 
respect  to  their  substance,  their  form,  or  their  extent ;  but 
has  always  preserved  the  elements  of  flexibility  and  ex- 
pansiveness,  so  that  new  ones  may  be  invented,  or  old  ones 
modified,  in  order  to  meet  the  requirements  of  every  case, 
and  to  satisfy  the  needs  of  a  progressive  social  condition, 
in  which  new  primary  rights  and  duties  are  constantly  aris- 
ing, and  new  kinds  of  wrongs  are  constantly  committed.* 

§110  (c)  The  text  is  cited  in  Eus-  54    Am.    Rep.    532,    40    N.    E.    646; 

sell   V.    McCall,    141   N.   Y.   437,    38  quoted,    also,    in    The    Salton    Sea 

Am.  St.  Kep.  807,  36  N.  E.  498.  Cases,    172    Fed.    820,    97    C.    C.    A. 

§  110,   (d)    This   paragraph   of  the  242   (injunction  against  overflow  of 

text  is  cited  in  Hicks  v.  Rupp,  49  land;   decree  protecting  all  rights); 

Mont.  40,  140  Pac.  97.  Harrison  v.  Woodward,  11  Cal.  App. 

§  111,   (a)    The   text  is   quoted  in  15,   103   Pac.   933    (suit  against  one 

Union  Pacific  R.  Co.  y.  Chicago,  R.  I.  holding  papers  in  escrow  to  recover 

&  P.  R.  Co.,  163  U.  S.  564,  16  Sup.  the   papers);    and   cited   in   Kessler 

Ct.  1173;  Columbia  Ave.  Sav.  Fund  &  Co.  v.  Ensley  Co.,  129  Fed.  397; 

etc.  Co.  V.  City  of  Dawson,  130  Fed.  Montgomery  Light  &  Power  Co.  v. 

152,     176;      Harrigan     v.     Gilchrist  Montgomery     Traction     Co.     (Ala.), 

(Wis.),  99  N.   W.   909;   Sourwiue  v.  191  Fed.  657,  664  (growing  liberality 

Supreme   Lodge,    12   Iiul.    App.   447,  of  courts  in  enforcing  specific   per- 


§  112  EQUITY   JURISPRUDENCE.  126 

§  112.  Although  the  number  and  variety  of  particular 
remedies  are  great,  those  in  common  use  may  be  grouped 
into  certain  general  classes  according  to  their  essential  ele- 
ments, which,  as  said  above,  are  based  upon  the  primary 
right  violated  and  the  wrongful  act  or  default  in  combina- 
tion. These  classes  are  the  following:  1.  Declarative 
Reniedies,  or  those  whose  main  and  direct  object  is  to  de- 
clare, confirm,  and  establish  the  right,  title,  property,  or 
estate  of  the  plaintiff,  whether  it  be  equitable  or  legal.  The 
remedies  of  this  class  are  often  granted  in  combination 
with  others,  and  in  fact  they  sometimes  need  other  kinds 
of  relief  as  a  preliminary  step  to  make  them  effective ;  but 
on  the  other  hand,  they  are  often  granted  by  themselves, 
unconnected  with  anything  else.  2.  Restorative  Remedies, 
or  those  by  which  the  plaintiff  is  restored  to  the  full  enjoy- 
ment of  the  right,  property,  or  estate  to  which  he  is  en- 
titled, but  which  use  and  enjoyment  have  been  hindered, 
interfered  with,  prevented,  or  withheld  by  the  wrong-doer.^ 
The  legal  remedies  of  this  kind  are  simple  recoveries  of 
possession  either  of  land  or  of  chattels.  The  equitable 
remedies  of  restoration  are  much  more  various  in  their 
form  and  complete  in  their  effect.  Like  those  of  the  first 
class,  they  are  often  granted  in  combination  with  other 
kinds  of  relief,  and  frequently  need  some  other  special 
equitable  remedy,  such  as  cancellation  or  reformation  of 
instruments,  to  remove  a  legal  obstacle  to  the  full  enjoy- 
ment of  the  plaintiff's  right,  and  to  render  them  efficient 
in  restoring  him  to  that  enjoj^ment.  3.  Preventive  Reme- 
dies, or  those  by  which  a  violation  of  a  primary  right  is 
prevented  before  the  threatened  injury  is  done,  or  by  which 
the  further  violation  is  prevented  after  the  injurj^  has 
been  partially  effected,  so  that  some  other  relief  for  the 

formanee);     Board    of    Commrs.    v.  §112   (a)   The   text    is    quoted    in 

A.   V.   Wills    &    Sons,   236   Fed.   362  Churcliill   v.   Capen,   84   Vt.    104,   78 

(under    special    circumstances,    con-  Atl.  734,  pointing  out  the  difference 

tract     for     construction     of     works  between  this  class  of  remedies  and 

specifically  enforced).  reformation. 


127  THE  CONSTITUENT  PARTS  OF  EQUITY.        §  112 

wrong  actually  accomplislied  can  be  granted.  The  ordi- 
nary injunction,  whether  final  or  preliminary,  is  the 
familiar  example  of  this  elass;  the  mandatory  injunction 
is  essentially  a  restorative  remedy.  4.  Remedies  of  Spe- 
cific Performance,  or  those  by  which  the  party  violating 
his  primary  duty  is  compelled  to  do  the  very  acts  wliicli 
his  duty  and  the  plaintiif's  primary  right  require  from 
him.  The  remedies  of  this  class  are  very  numerous  in 
their  special  forms  and  in  respect  to  the  juridical  relations 
in  which  they  are  applicable.  "Specific  performance"  is 
often  spoken  of  as  though  it  was  confined  to  the  case  of 
executory  contracts;  but  in  reality  it  is  constantly  em- 
ployed in  the  enforcement  of  rights  and  duties  arising 
from  relations  between  specific  persons  which  do  not  re- 
sult from  contracts,  as,  for  example,  between  cestuis  que 
trustent  and  their  trustees,  wards  and  their  guardians, 
legatees,  distributees,  or  creditors  and  executors  or  admin- 
istrators, and  the  like.^  In  these  latter  cases,  however,  as 
well  as  in  that  of  the  specific  performance  of  an  executory 
contract  at  the  suit  of  a  vendor,  the  form  and  nature  of  the 
final  relief  is  often  the  same  as  that  of  accounting,  pecu- 
niary compensation,  or  restoration.  5.  Remedies  of  Ref- 
ormation, Correction,  or  Re-execution,  by  means  of  wliioh 
a  written  instrument,  contract,  deed,  or  other  muniment 
of  title,  which  for  some  reason  does  not  conform  to  the 
actual  rights  and  duties  of  the  parties  there'to,  is  reformed, 
corrected,  or  re-executed."^  Sometimes  this  remedy  is 
asked  for  and  obtained  simply  on  its  own  account,  merely 
for  purpose  of  correcting  the  instrument;  but  it  is  often, 
and  perhaps  generally,  obtained  as  a  necessary  prelim- 
inary step  to  the  granting  of  a  further  and  more  substan- 
tial relief  needed  by  the  plaintiff,  such  as  a  restoration  to 
full  rights  of  property,  or  the  specific  performance  of  the 

§112,  (b)  The    text    is    cited    in       ment  lien   against   estate   of   deced- 

Hibernia  Sav.   &  L.  Soc.  v.  London       ®°  -'• 

0   T  T      T^-      T       n       ^oo  n  ^  §  ^^^'  ^'^^  '^^^^  paragraph  is  cited 

&  Lancashire  Fire  Ins.  Co.,  138  Cal.       ■     -yr  /->       i        /m        <-,•       .        x 

'  m  May  v.  Cearley  (Tex.  Civ.  App.). 

257,    71    Pac.    334    (enforcing   judg-       133  g.W.  165. 


§  112  EQUITY   JURISPRUDENCE.  128 

contract  after  it  lias  been  corrected.  6.  Remedies  of 
Rescission  or  Cancellation,  or  those  by  which  an  instru- 
ment, contract,  deed,  judgment,  and  even  sometimes  a  legal 
relation  itself  subsisting  between  two  parties,  is,  for  some 
cause,  set  aside,  avoided,  rescinded,  or  annulled.*^  This 
remedy,  like  the  preceding,  is  sometimes  conferred  as  the 
sole  and  final  relief  needed  by  the  plaintiff,  but  is  often 
the  preliminary  step  to  a  more  effective  remedy  by  which 
his  primary  right  is  declared  or  restored.  7.  Remedies  of 
Pecuniary  Compensation,  or  those  in  which  the  relief  con- 
sists in  the  award  of  a  sum  of  money.  These  remedies, 
whose  final  object  is  the  recovery  of  money,  are  of  three 
distinct  species,  which  differ  considerably  in  their  external 
form  and  incidents,  but  which  agree  in  their  substance, — 
in  the  intrinsic  nature  of  the  final  relief.  They  are  the 
following :  First.  Those  in  which  the  relief  consists  simply 
in  the  recovery  of  a  general  pecuniary  judgment;  that  is, 
a  judgment  to  be  enforced  or  collected  out  of  the  debtor's 
property  generally, — any  property  which  he  may  own 
liable  to  be  taken  in  satisfaction.  This  simple  pecuniar}'' 
recovery  is,  in  the  vast  majority  of  cases,  legal,  and  not 
equitable,  but  it  is  not  unknown  in  equity.®  A  court  of 
equity  occasionally  grants  the  relief  of  compensatory  dam- 
ages in  connection  with  some  other  specific  relief,^  and 
under  very  peculiar  circumstances  it  decrees  the  payment 
of  damages  alone.  Several  kinds  of  equitable  suits  are 
wholly  pecuniary  in  their  relief,  as  those  for  contribution 
and  exoneration.!     Secondly.     Those  cases  in  which  the 

§  112,  1  A  few  well-known  equitable  actions  are  wholly  pecuniary  in 
their  object  and  relief,   although  not  generally   described   as  such.     For 

§  112,   (d)   This  paragraph  is  cited  in  Cumberland  Telephone  &  Tel.  Co. 

in    Watson    v.    Borah,    37   Okl.    357,  v.  Williamson,  101  Miss.  1,  57  South. 

132  Pac.  347.  559. 

§  112,  (e)   The    text    is    cited    in  §  112,  (f )  The  text  is  cited  to  this 

State  V.  Sunapee  Dam  Co.   (N.  H.),  effect   in    Blair    v.    Smith,    114    Ind. 

55  Atl.  899,  912,  where  the  question  114,   5  Am.   St.  Rep.   593,   15   N.   E. 

of   damages  in  equity   suits  ia  very  817;  and  to  the  effect  that  damages 

elaborately    discussed.     Cited,    also,  in  equity  are  only  awarded  as  ancil- 


129  THE  CONSTITUENT  PARTS  OF  EQUITY.        §  112 

relief  is  not  a  general  pecuniary  judgment,  but  is  a  decroe 
of  money  to  be  obtained  and  paid  out  of  some  particular 
fund  or  funds.  The  equitable  remedies  of  this  species 
are  many  in  number  and  various  in  their  external  forms 
and  incidents.  They  assume  that  the  creditor  has,  either 
by  operation  of  law,  or  from  contract,  or  from  some  acts 
or  omissions  of  the  debtor,  a  lien,  charge,  or  encumbrance 
upon  some  fund  or  funds  belonging  to  the  latter,  either 
land,  chattels,  things  in  action,  or  even  money;  and  the 
form  of  the  remedy  requires  that  this  lien  or  charge  should 
be  established,  and  then  enforced,  and  the  amount  due  ob- 
tained by  a  sale  total  or  partial  of  the  fund,  or  by  a 
sequestration  of  its  rents,  profits,  and  proceeds.?  These 
preliminary  steps  may,  on  a  casual  view,  be  misleading 
as  to  the  nature  of  the  remedy,  and  may  cause  it  to  appear 
to  be  something  more  than  compensatory;  but  a  closer 
view  shows  that  all  these  steps  are  merely  auxiliary,  and 
that  the  real  remedy,  the  final  object  of  the  proceeding, 
is  the  pecuniary  recovery.  Among  the  familiar  examples 
of  this  species  are  the  suit  to  foreclose  a  mortgage  of  land, 
common  throughout  the  United  States,  by  a  sale  of  the 
mortgaged  premises ;  ^  the  suit  to  foreclose  a  chattel  mort- 

example,  the  suit  by  the  vendor  for  the  specific  performance  of  an  ordinary 
land  contract  is  really  brought  for  the  recovery  of  money  alone,  and  it 
differs  from  the  suit  to  enforce  the  vendor's  lien  in  the  fact  that  the 
judgment  is  for  the  recovery  of  the  mOney  generally,  and  not  out  of  tlie 
land  itself  as  a  special  fund. 

§  112,  2  The  strict  foreclosure  by  which  the  mortgagor's  equitable  right 
of  redernption  is  cut  off,  and  the  mortgagee's  legal  estate  is  perfected,  is 
a  remedy  of  an  entirely  different  class;  it  is  in  fact  a  recovery  of  land, 
the  acquisition  of  a  comj^lete  title,  the  establishment  of  a  perfect  legal 
ownership. 

lary  to  the  main  relief,  and  are  com-  §  112,   (g)   The   text   is   quoted   in 

pensatory,    not    exemplary   or    puni-  Weldon  v.  Superior  Court,  138   Gal. 

tive,   in   Karns   v.    Allen,    135   Wis.  427,  71  Pac.  502  (a  case  of  equitable 

48,  15  Arm.  Cas.  543,  115  N.  W.  357.  garnishment,  authorized  by  statute. 

As     to     compensatory     damages     in  by  a  materialman,  of  funds  due  the 

equity,  see  post,  §  237.  contractor) ;  and  in  Knapp,  Stout  & 
1—9 


§  112  EQUITY   JURISPRUDENCE.  130 

gage  by  a  sale  of  the  goods;  a  suit  to  enforce  a  vendor's 
lien  by  a  sale  of  the  land;  the  creditor's  suit  to  enforce 
his  equitable  lien  upon  the  debtor's  property  by  sale;  the 
suit  to  enforce  payment  of  a  married  woman's  contract 
by  a  sale  of  the  separate  estate  upon  which  it  is  charged; 
and  generally,  all  similar  suits  the  object  of  which  is  to 
enforce  an  equitable  lien  upon  a  fund,  and  thereby  to  ob- 
tain satisfaction  of  the  demand  which  it  secures.  Thirdly. 
There  is  also  another  species  of  pecuniary  remedies,  closely 
analogous  to  the  last,  and  differing  from  it  only  in  the 
additional  element  of  a  distribution  of  the  final  pecuniary 
awards  among  two  or  more  parties  having  claims  either 
upon  one  common  fund  or  upon  several  funds.^  The  final 
relief  in  all  these  cases  is  simply  pecuniary;  the  amounts 
to  which  the  different  parties  are  entitled  are  ascertained, 
and  are  obtained  by  a  distribution  of  the  fund  or  funds 
upon  which  they  are  chargeable.  Of  this  species  are  suits 
to  wind  up  partnerships  and  distribute  partnership  assets ; 
to  settle  and  distribute  the  personal  estates  of  decedents; 
to  marshal  assets;  and  the  statutory  proceeding  to  wind 
up  the  affairs  of  insolvent  corporations.  8.  The  Remedy 
of  Accounting.  This  is  closely  analogous  to  the  remedy 
of  Compensation,  and  is  generally  used  in  connection  with 
and  auxiliary  to  some  forms  of  it.  It  is  also  a  legal  rem- 
edy, but  has  become  to  a  great  extent  equitable.  It  is  a 
necessary  step  in  many  forms  and  varieties  of  pecuniary 
relief,  and  sometimes  is  an  essential  preliminary  in  es- 
tablishing rights  of  property  in  lands  or  chattels.  9. 
Remedies  of  Conferring  or  Removing  Official  Functions. 
Courts  of  equity  are  empowered  by  statute  in  many  of  the 
states  to  remove  and  to  appoint  trustees  of  private  trusts, 
and  under  certain  circumstances  to  remove  and  to  appoint, 
or  provide  for  the  election  of,  the  managing  officers  of 
private  business  corporations.     10.  Remedies  of  Establish- 

Co,   V.   McCaffrey,    178   HI.    107,    69  §112,  (h)   The  text  is   quoted  in 

Am.  St.  Rep.  290,  52  N.  E.  898  (en-  Weldon  v.  Superior  Court,  138  Cal. 
forcing  bailee's  lien  in  equity).  427,  71  Pac.  502. 


131  THE    CONSTITUENT    PARTS    OF    EQUITY.  §  113 

i)ig  or  Destroying  Personal  Status.  This  speeios  of  reme- 
dies does  not  belong  to  the  original  jurisdiction  of  chan- 
cery, and  so  far  as  it  exists,  is  wholly  of  statutory  origin.^ 
I  would  include  in  it  suits  to  obtain  a  divorce  and  to  annul 
a  marriage,J  which  in  several  of  the  states  are  entertained 
by  equity  courts,  and  proceedings  by  which  a  person  is 
judicially  declared  to  be  of  unsound  mind  or  an  habitual 
drunkard.  Other  species  of  equitable  remedies  have  been 
created  by  statute  in  different  states,  which  do  not  prop- 
erly belong  to  any  of  the  foregoing  classes.  The  most 
important  are  the  proceedings  for  the  dissolution  and 
winding  up  of  corporations,  and  of  enforcing  the  official 
duties  of  corporate  officers.  The  remedial  powers  of 
equity  are  so  broad  and  so  flexible  that  there  may  be  many 
other  special  forms  of  remedy  belonging  to  its  general 
jurisdiction,  but  depending  so  closely  upon  the  peculiar 
circumstances  and  relations  of  the  litigant  parties  that  they 
do  not  admit  of  classification. 

§  113.  The  equitable  remedies  also  differ  from  the  legal 
ones  in  the  manner  of  their  administration.  The  common- 
law  rules  of  procedure  are  fixed,  rigid,  arbitrary,  technical, 
while  those  of  the  equity  suit  are  natural  and  flexible. 
In  no  features  is  the  contrast  greater  than  in  respect  to 
parties  and  to  judgments.  The  doctrines  of  the  common 
law  concerning  the  parties  to  actions,  their  joint  or  several 
rights  and  liabilities,  and  the  form  of  judgment  based  upon 
these  respective  kinds  of  right  and  liability,  are  the  crown- 
ing technicality  of  the  system,  resting  upon  verbal  prem- 
ises which  mean  nothing,  and  built  up  from  these  premises 
by  the  most  accurate  processes  of  mere  verbal  logic.  It 
was  a  fundamental  principle  that  no  one  could  be  a  plain- 

§  112,   (i)    The    text   is    quoted    in  vorce  is   a   "case   in   equity"   within 

Vandorbilt  v.  Mitchell,  71  N.  J.  Eq.  the  moaning  of  a  constitutional  pro- 

632,   63   Atl.    1107;   reversed   on   ap-  vision  conferring  appellate  jurisdic- 

peal,  72  N.  J.  Eq.  910,  14  L.  R.  A,  tion     in    all     cases    in     equity,     see 

(N.  S.)  304,  67  Atl.  97.  Sharon    v.    Sharon,    67    Cal.    185,    7 

§112,    (j)    That  an  action  for  di-  Pac.  456,  635,  8  Pac.  709. 


§  113  EQUITY   JUEISPEUDENCE.  132 

tiff  unless  he  was  alone  or  jointly  with  the  co-plaintiffs 
entitled  to  the  whole  recovery,  nor  a  defendant  unless  he 
was  alone  or  jointly  with  the  co-defendants  liable  to  the 
entire  demand.  The  common  law  knew  no  such  thing  as 
the  making  a  person  plaintiff  who  did  not  share  the  right 
of  recovery,  or  defendant  who  was  not  liable  for  the  whole 
claim,  merely  for  the  purpose  of  binding  him  by  the  jiidrj- 
ment  and  cutting  off  any  possible  right  on  his  part?-  The 
judgment  must  be  one  single,  entire  recovery,  both  as 
affects  the  plaintiffs  and  the  defendants ;  and  no  one  could 
be  a  plaintiff  who  did  not  thus  hold  the  legal  title,  even 
though  all  beneficial  interest  in  the  cause  of  action  be- 
longed to  another.  On  this  ground  the  assignor  of  a  thing 
in  action  not  negotiable  must  be  the  plaintiff,  and  the  abil- 
ity of  an  assignee  to  bring  an  action  is  wholly  the  result 
of  statute.  "Where  the  action  was  by  two  or  more  plain- 
tiffs, the  judgment  was  necessarily  a  single  one  in  favor 
of  all  considered  as  one  undivided  body.  It  was  impossible 
that  each  one  of  several  plaintiffs  could  recover  a  differ- 
ent sum  of  money  by  way  of  debt  or  damages.  Even  if 
the  action  was  for  the  possession  of  chattels  or  land,  dif- 
ferent plaintiffs  could  not  recover  distinct  chattels  or 
tracts  of  land;  the  judgment  was  for  all  the  chattels  as 
one  subject-matter,  or  for  the  whole  land  as  a  unit,  and  if 
the  plaintiff's  rights  were  different  they  must  be  undivided, 
so  that  each  share,  being  as  yet  unpartitioned,  should  ex- 

§  113,  1  This  rule  has  been  changed  by  the  new  procedure  as  adopted 
in  several  of  the  western  states,  which  very  properly  requires  that  when 
an  action  is  brought  by  the  assignee  of  a  thing  in  action,  except  of  nego- 
tiable paper,  the  assignor  must  be  made  a  party  either  plaintiff  or 
defendant,  so  that  he  may  be  heard,  if  necessaiy,  on  the  question  as  to 
the  validity  of  the  alleged  assignment,  and  any  future  claim  against  the 
debtor  on  his  part  may  be  barred  by  the  judgment.  This  innovation, 
which  strikes  at  the  very  root  of  the  common-law  theoiy  as  to  parties 
and  judgments,  has  been  in  operation  for  years  without  the  slightest  diffi- 
culty, and  its  advantages  are  patent.  This  single  fact  demonstrates  the 
utter  worthlessness,  the  mere  verbal  character,  of  the  so-called  legal  rea- 
soning by  which  the  common-law  dogmas  have  been  upheld. 


133  THE    CONSTITUENT   PARTS   OF   EQUITY.  §  114 

tend  throughout  the  entire  mass,  and  the  judgment  be  for 
^11  as  joint  or  co-owners.  The  same  rule  extended  to  the 
defendants.  If  there  were  two  or  more,  one  single  judg- 
ment must  be  rendered  against  all;  different  recoveries 
against  separate  defendants  in  the  same  action  were  im- 
possible. The  common  law  permitted  no  affirmative  re- 
lief, no  recovery  of  debt  or  damages,  land  or  chattels,  in 
favor  of  a  defendant  against  a  plaintiff,  except  perhaps  in 
the  little  used  and  now  virtually  obsolete  legal  action  of 
"account."  Even  in  the  case  of  "Recoupment  of  Dam- 
ages," which  was  a  recent  invention  of  the  common-law 
courts,  the  demand  on  behalf  of  the  defendant  was  only 
used  defensively.  The  exceptional  case  of  "Set-off,"  in 
which  alone  an  affirmative  recovery  always  pecuniary  was 
ever  possible  in  favor  of  the  defendant,  was  wholly  of  a 
statutory  origin.^- 

§  114.  The  equitable  doctrines  with  respect  to  parties 
and  judgments  are  wholly  unlike  those  which  prevailed  at 
the  common  law,  different  in  their  fundamental  concep- 
tions, in  their  practical  operation,  in  their  adaptability  to 
circumstances,  and  in  their  results  upon  the  rights  and 
duties  of  litigants.  The  governing  motive  of  equity  in  the 
administration  of  its  remedial  system  is  to  grant  full  re- 
lief, and  to  adjust  in  the  one  suit  the  rights  and  duties  of 
all  the  parties,  which  really  grow  out  of  or  are  connected 
with  the  subject-matter  of  that  suit.^  Its  fundamental 
principle  concerning  parties  is,  that  all  persons  in  whose 
favor  or  against  whom  there  might  be  a  recovery,  however 
partial,  and  also  all  persons  who  are  so  interested,  although 
indirectly,  in  the   subject-matter  and  the   relief  granted, 

§113,   (a)    Common-law  Doctrines  170    Fed.    24,    95    C.    C.   A.    298;    in 

Concerning  Parties  and  Judgments.  Nichols    v.    Nichols,    79    Conn.    644, 

The  text  is  cited  in  Hayden  v.  Doug-  66  Atl.  161;  in  Seiver  v.  Union  Pac. 

las  County,  170  Fed.  24,  95  C.  C.  A.  E.  Co.,  68  Neb.  91,  110  Am.  St.  Rep. 

298.  393,  61  L,  R.  A.  319,  93  N.  W.  943; 

§  114,  (a)  Equitable  Doctrines  Con-  in  Sexton  v.  Sutherland  (N.  D.),  164 

cernlng  Parties. — The  text  is  quoted  N.  W.  278. 
in  Hayden  v.  Douglas  County  (Wis.), 


§  115  EQUITY   JUKISPKUDENCE.  134 

that  their  rights  or  duties  might  be  affected  by  the  decree, 
although  no  substantial  recovery  can  be  obtained  either  for 
or  against  them,  shall  be  made  parties  to  the  suit;  and  it 
is  not  ordinarily  a  matter  of  substantial  importance 
whether  they  are  joined  as  plaintiffs  or  as  defendants, 
although  this  question  of  procedure  is  regulated  to  a  cer- 
tain extent  by  rules  based  upon  considerations  of  con- 
venience rather  than  upon  any  essential  requirements  of 
the  theory.  The  primary  object  is,  that  all  persons  suffi- 
ciently interested  may  be  before  the  court,  so  that  the  re- 
lief may  be  properly  adjusted  among  those  entitled,  the 
liabilities  properly  apportioned,  and  the  incidental  or  con- 
sequential claims  or  interests  of  all  may  be  fixed,  and  all 
may  be  bound  in  respect  thereto  by  the  single  decree.^ 

§  115.  The  fundamental  principle  of  equity  in  relation 
to  judgments  is,  that  the  court  shall  determine  and  adjust 
the  rights  and  liabilities  concerning  or  connected  with  the 
subject-matter  of  all  the  parties  to  the  suit,  and  shall  grant 
the  particular  remedy  appropriate  in  amount  and  nature 
to  each  of  those  entitled  to  any  relief,  and  against  each  of 
those  who  are  liable,  and  finally  shall  so  frame  its  decree 
as  to  bar  all  future  claims  of  any  party  before  it  which  may 
arise  from  the  subject-matter,  and  which  are  within  the 
scope  of  the  present  adjudication.^  In  rendering  its  de- 
cree, a  court  of  equity  is  not  hampered  by  any  of  the  arbi- 
trary regulations  which  restrict  the  action  of  common-law 
tribunals ;  and  especially,  it  is  not  bound  to  give  a  single 

§114,   (b)   The    text   is   quoted   in  79  N.  J.  Eq.  342,  81  Atl.  36.8  (prin- 

Seiver  v.  Union  Pac.  K.  Co.  68  Neb.  ciple  applied  to  specific  performance 

91,  110  Am.  St.  Eep.  393,  61  L.  E.  A.  suit). 

319,  93  N.  W.  943  (injunction  against  §  115,   (a)   The  text  was  quoted  in 

a   multiplicity  of  garnishment   suits  Union  Mill   &  Mining  Co.  v.  Dang- 

to  reach  exempt  wages);   in  Sexton  berg,   81   Fed.   73,   119,   by   Hawley, 

V.    Sutherland    (N.    D.),    164   N.    W.  D.  J.,  and  the  principle  applied  in  a 

278;  cited  in  Behlow  v.  Fisher,  102  decree   apportioning  the  use   of  the 

Cal.    208,    36    Pac.    509    (dissenting  waters  of  a  stream  among  numerous 

opinion;  dissolution  of  partnership);  riparian    proprietors.     The    text    is 

in   Peeples    v.    Yates,    88    Miss    2S9,  cited  in  Hayden  v.  Douglas  County, 

40    South.    996;    in    Day    v.    Devitt,  170  Fed.  24,  95  C.  C.  A.  298. 


135  THE    CONSTITUENT    PARTS    OF    EQUITY.  §  116 

judgment  in  favor  of  the  co-plaintiffs  regarded  as  one 
body,  nor  against  the  defendants  as  a  group  of  persons 
jointly  or  equally  liable.  In  this  respect  it  possesses  a  full 
freedom  to  adapt  its  relief  to  the  particular  rights  and 
liabilities  of  each  party,  and  to  determine  the  special  in- 
terests of  all,  so  far  as  they  are  legitimately  connected 
with  the  subject-matter,  and  properly  within  the  scope  of 
the  adjudication.  It  has  power  to  grant  relief  to  some  of 
the  co-plaintiffs,  and  not  to  others,  aiid  against  some  of 
the  co-defendants,  and  not  against  others;  it  can  confer 
different  reliefs  in  kind  and  extent  to  different  plaintiffs 
and  against  different  defendants ;  it  can  bestow  affirmative 
relief  upon  all  or  some  of  the  defendants  against  all  or 
some  of  the  plaintiifs;  and  finally,  it  can  determine  and 
adjust  the  rights  and  duties  of  the  co-plaintiffs,  or  of  the 
co-defendants,  as  between  themselves.  I  would  not  be 
understood  as  asserting  that  this  extreme  flexibility  or 
apportionment  of  remedies  and  obligations  is  common  in 
ordinary  equitable  suits,  nor  that  it  is  without  limit  and 
control;  on  the  contrary,  it  is  regulated  by  rules  of  plead- 
ing and  procedure  so  contrived  that  all  parties  may  be  in- 
formed of  the  claims  made  against  them,  and  of  the  liabili- 
ties to  which  they  are  exposed.  My  object  here  is  simply 
to  state  the  general  principles  of  the  Equity  Remedial 
System,  and  to  describe  the  power  which  inheres  in  a  court 
of  equitable  jurisdiction  to  mold  its  decree  and  to  adjust 
its  reliefs  so  as  to  establish  and  enforce  the  particular 
rights  and  liabilities,  legitimately  connected  with  the  sub- 
ject-matter, and  within  the  scope  of  the  judgment,  of  all 
the  parties  to  the  action.  The  modes  in  which  this  power 
should  be  exercised  according  to  the  rules  of  pleading  and 
procedure  must  be  considered  in  another  place. 

§  116.  The  remedial  system  of  equity  as  a  whole,  with 
its  great  variety  of  specific  remedies  which  enforce  the  very 
primary  rights  and  duties  of  persons  rather  than  give 
pecuniary  equivalents  for  their  ^dolation,  with  its  power  to 


§  116  EQUITY   JURISPRUDENCE.  136 

enlarge  the  scope  of  these  ordinary  forms  of  relief,  and 
even  to  contrive  new  ones  adapted  to  new  circumstances, 
with  its  comprehensive  rules  concerning  parties,  and  with 
its  unlimited  control  over  the  form  and  material  of  its  judg- 
ments, possesses  enormous  advantages  over  the  narrow, 
inflexible,  and  artificial  methods  of  the  common  law.  The 
reformed  American  procedure  has  attempted  to  combine 
the  two,  or  rather  to  enlarge  the  equity  doctrines  and  rules, 
so  that  they  may  embrace  all  actions,  legal  as  well  as  equi- 
table; and  in  those  states  where  the  courts  have  accepted 
and  carried  out  the  reform  in  its  true  spirit,  this  attempt 
has  been  successful  as  far  as  is  possible  from  the  essential 
elements  of  the  two  jurisdictions.  A  complete  amalgama- 
tion, however,  is  not  possible,  so  long  as  the  jury  trial  is 
retained  in  legal  actions.  There  is  certainly  no  impossi- 
bility nor  even  difficulty  in  requiring  a  jury  to  decide  the 
issues  of  fact  upon  which  the  right  to  many  kinds  of  equi- 
table remedy  depends;  this  is  the  province  of  a  jury  in 
legal  actions,  the  court  pronouncing  the  judgment  upon 
their  verdict.  A  jury  is  clearly  incompetent  to  frame  and 
deliver  a  decree  according  to  the  doctrines  and  methods 
of  equity;  but  there  can  be  no  real  obstacle  in  the  way  of 
its  ascertaining  the  facts  by  its  verdict,  and  leaving  the 
court  to  shape  the  decree  and  award  the  relief  based  upon 
these  facts  in  many  species  of  equitable  remedy.  That  the 
issues  of  fact  may  be  complicated  is  no  insurmountable 
difficulty;  for  no  issues  of  fact  are  ordinarily  more  com- 
plicated than  those  involving  elements  of  fraud,  which  have 
always  been  regarded  as  peculiarly  within  the  province  of 
a  jury.i     There  are,  however,  classes  of  equitable  suits  in 

§  116,  1  This  proposition  of  the  text,  which  might  otherwise  have  been 
regarded  as  a  mere  theoretical  conception,  has  been  actually  wrought  out 
into  practice  by  the  courts  of  Pennsylvania.  For  a  long  term  the  legis- 
lature of  that  state  refused  to  confer  any  equitable  jurisdiction  upon  its 
courts.  As  a  consequence,  and  in  order  to  prevent  a  failure  of  justice, 
the  courts  contrived  a  system  of  administering  many  equitable  remedies 
and  enforcing  many  equitable  rights  by  means  of  the  common-law  forms 


137  THE    CONSTITUENT   PARTS    OF   EQUITY.  §  117 

which  the  issues  of  fact  upon  which  the  relief  depends  are 
so  intimately  connected  with  the  relief  itself  that  their 
decision  is  plainly  beyond  the  competence  of  a  jury,  and 
must  of  necessity  be  left  to  the  court  or  judge.  Of  this 
character,  for  Example,  are  all  suits  for  the  distribution 
and  marshaling  of  assets,  and  in  fact  all  those  in  which 
the  final  relief  depends  upon  an  accounting.  ^Tiile  a  par- 
tial amalgamation  of  law  and  equity  into  one  remedial 
system  may  be  theoretically  possible  by  extending  the  jury 
trial  to  certain  equitable  actions  in  which  it  is  not  now 
used,  I  am  strongly  of  the  opinion  that  the  jury  trial  in 
civil  causes  of  a  legal  nature  is  a  practical  obstacle  to  any 
more  complete  combination  of  the  two  systems  than  has 
already  been  accomplished  by  the  reformed  procedure.^ 

§  117.  To  sum  up  the  discussions  of  the  foregoing  sec- 
tion: The  entire  municipal  law,  so  far  as  it  is  concerned 
with  private  civil  relations,  comprises, — 1.  Legal  rules 
defining  legal  primary  rights  and  duties  applicable  to  most 
of  the  facts  and  circumstances  which  have  been  brought 
within  the  range  of  jural  relations;  2.  Legal  rules  defin- 
ing legal  remedial  rights  and  duties  and  remedies,  which 
are  few  in  number,  and  very  limited  in  their  nature  and 
form;  3.  Equitable  rules  defining  equitable  primary  rights 
and  duties  applicable  to  certain  classes  of  jural  relations, 
which  rights  and  duties  are  supplementary  and  additional 
rather  than  contradictory  to  the  legal  ones  affecting  the 

of  action.  This  was  accomplished  in  the  manner  suggested  in  the  text. 
In  the  common-law  action  the  facts  showing  the  equitable  right  were 
admitted  into  the  pleadings,  the  jury  passed  upon  the  issues  of  fact,  legal 
and  equitable,  and  on  their  verdict  the  court  rendered  its  judgment,  which, 
by  being  made  conditional,  was  enabled  in  an  indirect  manner  to  main- 
tain the  equitable  right  and  grant  the  equitable  remedy.  In  this  manner 
the  common-law  action  of  ejectment  was  made  the  means  of  enforcing 
specific  performance,  and  of  protecting  the  equitable  estates  of  parties, 
where  their  land  was  held  under  an  implied  trust,  etc. 

§  116,  2  See  Pomeroy  on  Remedies  and  Remedial  Rights,  §§  51,  52,  in 
which  this  question  is  more  fully  examined. 


§  117  EQUITY    JURISPRUDENCE.  138 

same  relations;  4.  Equitable  rules  defining  equitable  pri- 
mary rights  and  duties  applicable  to  a  comparatively  few 
facts  and  circumstances,  which  are  actually  conflicting  with 
the  corresponding  legal  rights  and  duties;  5.  Equitable 
rules  defining  equitable  remedial  rights  and  duties  and 
remedies,  which  are  much  more  various  in  their  nature  and 
form,  specific  in  their  object,  and  flexible  in  their  opera- 
tion, than  the  remedies  supplied  by  the  law.  There  is, 
therefore,  no  clashing  nor  uncertainty  with  respect  to  the 
final  absolute  rights  and  duties  of  individuals,  except  so 
far  as  such  conflict  or  doubt  may  arise  from  the  compara- 
tively few  rules  of  the  fourth  class,  where  the  antagonism 
between  equity  and  the  law  does  actually  exist.  It  is  cer- 
tainly strange,  inexplicable  except  upon  historical  grounds, 
that  in  an  age  and  country  advanced  in  civilization,  the 
municipal  law  should  present  such  an  anomaly,  that  a 
married  woman's  agreement,  for  example,  should  be 
utterly  void  by  the  rules  of  the  law,  while,  according  to 
the  doctrines  of  equity,  it  might  be  valid  and  enforceable 
out  of  her  separate  estate;  or  that  a  certain  contract  for 
the  sale  of  land  should  be  treated  as  an  absolute  nullity  by 
a  court  of  law,  and  should  be  regarded  as  binding  and 
specifically  executed  by  a  court  of  equity.  If  any  change, 
however,  is  to  be  made  for  the  purpose  of  removing  this 
discord,  it  must  be  in  the  legal  and  not  in  the  equitable 
rules.  The  latter  are,  in  all  instances,  the  more  just,  and 
more  in  accordance  with  the  sentiments  and  opinions  of 
the  age ;  while  the  former  are  necessarily  subordinate,  some 
of  them  have  become  practically  obsolete,  and  all  of  them 
would  be  totally  abandoned  in  any  thorough  revision  or 
scientific  codification  of  our  entire  jurisprudence. 


139  THE    PRINCIPIiES   OF    CLASSIFICATION.       §§  118,  119 


SECTION  V. 

THE  PRINCIPLES  OF  CLASSIFICATION. 

ANALYSIS. 

§  118.     Importance  and  difficulty  of  a  correct  classification, 
f §  119, 120.     Different  grounds  which  might  be  taken  for  a  classification. 
§§  121-125.     Ordinary  mode  of  classification  according  to  the  nature  of  the 
jurisdiction. 

§  121.     In  the  three  divisions  of  exclusive,  concurrent,  and  auxiliary. 
§§  122,  123.     Different  modes  of  carrying  out  this  system  by  various  writers. 
§§  124,  125.     Fundamental  objections  to  this  system  of  classification. 
§§  126,  127.     The  true  principles  of  classification  in  the  present  condition  of 
Equity. 

§  128.     Plan  and  order  of  arrangement  adopted  in  this  treatise. 

§  118.  Importance  and  Difficulty  of  a  Correct  Classifi- 
cation.— The  practical  as  well  as  the  scientific  value  of  a 
treatise  on  equity  jurisprudence  must  largely  depend  upon 
the  Principles  of  Classification  adopted  in  the  arrange- 
ment and  discussion  of  the  subject-matter.  At  the  very 
outset,  however,  we  encounter  a  most  serious  obstacle. 
From  the  partial  character  of  equity  as  a  system,  from  the 
fact  that  it  covers  only  a  comparatively  small  portion  of 
the  doctrines  and  rules,  facts  and  circumstances,  embraced 
in  the  entire  national  jurisprudence,  its  orderly  and  con- 
sistent arrangement  necessarily  becomes  a  matter  of  great 
difficulty.  There  are  so  many  breaks,  omissions,  and,  so 
to  speak,  empty  spaces  in  the  system  of  equity,  that  it  is 
almost  impossible  to  follow  any  one  plan  or  method 
throughout  the  whole  extent.  It  is  plain,  however,  that 
the  principles  and  modes  adopted  should  conform  to  the 
present  condition  of  equity,  and  to  its  existing  relations 
with  the  law. 

§  119.  Different  Grounds  of  Classification. — There  are 
several  features  or  elements  of  the  equity  jurisprudence 
which  might,  with  more  or  less  propriety,  be  selected  as 
the  basis  of  a  classification.    Among  these  are  certain  im- 


§  119  EQUITY   JUEISPRUDENCE.  140 

portant  external  facts  or  events,  such  as  Fraud,  Mistake, 
Accident,  and  the  like,  which  are  the  occasions  of  numer- 
ous equitable  rules.  These  external  facts  have  been 
treated  by  some  writers  as  distinct  heads  or  departments 
of  equity  jurisprudence,  and  they  are  often  so  described 
in  the  general  language  of  judicial  opinions.  A  jurispru- 
dence, however,  does  not  consist  of  the  mere  facts  or  events 
which  are  the  occasions  of  rules  and  rights,  but  of  the  rules 
which  create  the  rights,  and  of  the  rights  and  duties  them- 
selves which  result  from  these  rules.  Although  such  ex- 
ternal facts  and  events  as  fraud,  mistake,  accident,  and 
the  like  are  the  occasions  of  numerous  equitable  rules,  and 
therefore  figure  largely  in  the  practical  workings  of  the 
equitable  jurisdiction,  they  are  also  the  occasions  from 
which  many  legal  rules  and  rights  take  their  origin;  they 
are  not  peculiar  to  equity,  and  if  adopted  as  a  basis  of 
classification,  would  tend  to  confuse  its  doctrines  with  those 
of  the  law.  There  is  another  objection,  of  much  more 
weight.  These  external  facts  are  the  sources  of  a  great 
variety  both  of  rights  and  remedies.  Fraud,  for  example, 
affects  a  large  part  of  equity  jurisprudence.  It  is  the  occa- 
sion of  equitable  rights  of  property,  of  equitable  rights  con- 
cerning contract,  of  equitable  rights  growing  out  of  special 
personal  relations,  such  as  cestui  que  trust  and  trustee, 
and  of  many  equitable  remedies,  such  -as  cancellation, 
reformation,  specific  enforcement,  accounting,^  and  others. 
It  is  plain,  therefore,  that  these  species  of  external  facts 
and  events,  important  as  they  undoubtedly  are,  do  not  fur- 
nish any  sufficient  basis  for  a  practical  nor  for  a  scientific 
classification.  They  do  not  suggest  any  grounds  for  dis- 
criminating between  rights  and  remedies  which  are  essen- 
tially different;  they  would  tend  to  produce  confusion, 
rather  than  to  supply  a  means  of  analyzing  and  arranging 
the  doctrines  in  an  orderly  and  distinct  manner. 

§  119,   (a)  The    text    is    cited    in  also,  in  Walls  v.  Brundidge,  109  Ark. 

Stockton  V.  Anderson,  40  N.  J.  Eq.  250,  Ann.  Cas.  1915C,  980,  160  S.  W. 

486,  4  Atl.  642;  McCormick  v.  Hart-  230;  Stapleton  v.  Haight,  135  Iowa, 

ley,  107  Ind.  248,  6  N".  E.  357.    Cited,  564,  113  N.  W.  351. 


141  THE    PRINCIPLES   OF    CLASSIFICATION.        §§120,121 

§  120.  Another  possible  basis  for  a  classification  miglit 
be  found  in  certain  grand  iinderl3ing  principles,  wliich  are 
often  called  the  Maxims  of  Equity,  of  which  the  following 
are  given  merely  as  examples:  lie  who  seeks  equity  must 
do  equity;  equality  is  equity;  equity  regards  as  done  what 
ought  to  be  done;  equity  looks  at  the  substance  and  real 
intent,  and  not  at  the  form,  etc.  It  must  be  said  of  these 
grand  principles,  that  they  are  a  component  part  of  equity 
jurisprudence,  and  not  mere  external  facts  or  events,  like 
fraud  and  mistake.  They  are  the  fruitful  sources  of  doc- 
trine whence  are  derived  a  vast  number  of  particular  rules 
concerning  both  primary  rights  and  remedies.  But  the 
objection  last  mentioned  in  the  preceding  paragraph  ap- 
plies with  even  greater  force  to  them.  These  principles 
are -too  broad,  comprehensive,  and,  so  to  speak,  universal, 
to  be  taken  as  the  basis  of  any  practical  classification. 
They  run  through  all  parts  of  the  system,  and  are  the 
source  of  so  many  and  different  rights  and  remedies,  that 
they  furnish  no  lines  of  division  nor  grounds  of  distin- 
guishing one  from  another,  and  of  arranging  the  whole 
according  to  any  fixed  plan.  These  principles  in  them- 
selves are  of  the  highest  importance  to  an  accurate  under- 
standing of  equity  as  a  whole ;  they  are  the  unfailing  foun- 
tains whence  flow  the  various  streams  of  right  and  justice ; 
the  perennial  sources  of  practical  rules  applicable  to  the 
ever-changing  events  of  the  social  life;  the  foundation- 
stones  upon  which  the  beautiful  structure  of  equity  has 
been  erected.  The  student  who  has  made  all  these  prin- 
ciples a  part  of  his  mental  habit,  who  has,  as  it  were,  in- 
corporated them  into  his  very  intellectual  being,  has 
already  mastered  the  essence  of  equity,  and  has  made  the 
acquisition  of  its  particular  rules  an  easy  and  delightful 
labor.S' 

§  121.    Ordinary  Mode  of  Classification. — The  plan  of 

arrangement  which  has  been  followed  by  most  authors  of 

§  120,  (a)  The  text  is  cited  in  Otis  v.  Gregory,  111  Ind.  504,  13 
N.  E.  39. 


§  122  EQUITY   JURISPRUDENCE.  142 

general  treatises  is  based  upon  the  relations  wliicli  for- 
merly existed  between  equity  and  the  law  when  the  two 
jurisdictions  were  as  yet  wholly  distinct,  and  were  admin- 
istered by  separate  tribunals.  Its  divisions  were  made, 
not  according  to  any  inherent  quality  or  nature  either  of 
rights  or  remedies,  but  according  to  a  purely  accidental 
quality  of  the  jurisdiction.  The  fact  that  this  jurisdic- 
tional criterion  was  merely  accidental  and  incidental,  is 
demonstrated  by  its  having  been  utterly  abolished  in  Eng- 
land and  in  many  of  our  states  without  any  change  in  the 
equitable  rights  and  remedies  themselves,  but  with  only  a 
change  in  the  mode  of  administering  those  rights  and 
remedies  by  a  separate  judicial  proceeding.  This  plan  of 
classification  separates  the  whole  body  of  equity  into  the 
three  following  grand  divisions:  1.  That  containing  the 
matters  in  respect  of  which  courts  of  equity  had  an  exclu- 
sive jurisdiction ;  2.  That  containing  matters  in  respect  of 
which  courts  of  equity  had  jurisdiction  concurrently  with 
courts  of  law;  3.  That  containing  matters  in  respect  of 
which  the  equity  jurisdiction,  though  exclusive,  was  wholly 
exercised  in  aid  of  certain  actions  or  proceedings  which 
belonged  exclusively  to  courts  of  law.  In  brief,  the  classi- 
fication which  has  ordinarily  been  adopted  in  the  text- 
books is,  the  Exclusive  Jurisdiction,  the  Concurrent  Juris- 
diction, and  the  Auxiliary  Jurisdiction. 

§  122.  Before  examining  the  merits  of  this  plan,  a 
brief  description  of  the  manner  in  which  it  has  been  fol- 
lowed by  different  authors  will  be  given.  A  great  diver- 
sity exists  among  text-writers  who  have  adopted  this  plan, 
in  the  modes  which  they  have  employed,  in  the  accuracy 
and  consistency  with  which  they  have  adhered  to  the  prin- 
ciples, in  the  criteria  which  they  have  taken  to  determine 
the  nature  and  scope  of  the  three  grades  of  jurisdiction, 
and,  as  a  consequence,  in  their  arrangement  of  particular 
topics  and  heads  of  equity  in  one  or  the  other  of  these  three 
divisions.     By  some  writers  the  element  of  exclusiveness 


143  THE    PRINCIPLES    OF    CLASSIFICATION.  §  123 

or  of  concurrence  in  the  jurisdiction  has  been  regarded 
more  in  connection  with  the  primary  rights,  estates,  and 
interests  created  by  equity  than  with  its  remedies.  But 
they  have  not  followed  this  method  consistently,  since  their 
order  of  arrangement  has,  to  a  partial  extent,  been  deter- 
mined by  the  nature  of  the  remedies,  and  even  by  mere 
external  facts  or  events  which  are  the  occasions  of  rights 
and  duties.  It  has  resulted  from  this  radical  difference 
in  their  mode  of  interpreting  and  carrying  out  the  plan, 
that  there  is  no  agreement  among  these  authors  in  their 
arrangement  of  particular  topics  under  the  three  general 
divisions  of  jurisdiction.  ^ 

§123.  -Other  authors,  in  adopting  this  general  plan  of 
classification,  have  applied  the  criterion  of  exclusiveness 
or  concurrence  wholly  to  the  remedies  which  equity  gives, 
and  have  determined  the  various  topics  falling  within  one 
or  the  other  of  the  three  divisions  in  accordance  with  the 
nature  of  these  remedies ;  that  is,  whether  they  belong  ex- 
clusively to  the  equity  jurisdiction,  or  are  conferred  by  the 

§  122,  1 1  take  simply  as  an  illustration  the  Principles  of  Equity,  by 
E.  H.  T.  Snell  (London,  1874).  In  the  "Concurrent"  jurisdiction,  this 
author  places  both  "Specific  Performance"  and  "Injunction,"  although  as 
remedies  both  are  exclusively  equitable.  The  reason  of  this  arrangement 
seems  to  be  that  the  law  has  jurisdiction  over  contracts  generally,  and 
over  some  of  the  rights  and  interests  which  may  be  protected  by  injunc- 
tion. Under  the  "Auxiliary"  jurisdiction,  he  strangely  enough  places  the 
remedy  of  "CanceUation,"  "Bills  to  Establish  Wills,"  "Bills  Quia  Timet," 
and  "Bills  of  Peace."  The  first  of  these  is  an  exclusive  equitable  remedy, 
and  is  constantly  used  as  a  means  of  establishing  or  restoring  equitable 
rights  and  estates.  The  three  others  are  in  evei-y  case  final  reliefs,  de- 
claring and  establishing  rights  of  property.  It  is  difficult  to  conceive 
how  a  suit  to  "quiet  title"  can  be  regarded  as  belonging  to  the  "Auxiliary" 
jurisdiction.  This  author,  like  many  others,  places  fraud,  actual  or  con- 
structive, mistake,  and  accident  as  distinct  heads  of  concuiTent  juris- 
diction. The  objections  to  such  an  arrangement  are  patent.  In  the  first 
place,  as  already  said,  these  matters  are  not  in  any  sense  parts  of  equity 
jurisprudence.  In  the  second  place,  they  are  the  occasions  whence  equi- 
table primary  rights  and  remedies  of  the  most  exclusive  character  take 
their  rise,  as  well  as  those  which  are  legal. 


§  123  BQUITT  JUKISPRUDENCE.  144 

law  courts,  or  are  entirely  auxiliary  to  the  prosecution  of 
legal  actions.  This  method  has  the  advantage  of  consist- 
ency and  simplicity,  and  is  not  open  to  the  objection  of 
confusion ;  but  it  necessarily  places  the  primary  rights  and 
duties  of  equity  in  a  very  subordinate  position,  and  thus 
presents  a  one-sided  and  even  misleading  view  of  the 
equity  jurisprudence  considered  in  its  totality.^  Some 
text-writers  of  high  reputation,  while  professing  to  class- 
ify particular  topics  under  the  three  divisions  according 
to  the  nature  of  the  remedies,  have  failed  to  carry  out  this 
mode  of  arrangement  with  consistency,  and  have  thus  left 
the  student  without  any  certain  clew  to  their  system  of 
classification.2 

§  123,  1  By  far  the  best  example  of  this  method,  I  think,  is  the  Doctrine 
of  Equity,  by  John  Adams,  6th  Am.  ed.,  1873.  His  three  chief  divisions 
are :  1.  Jurisdiction  in  cases  in  which  the  law  courts  cannot  enforce  a 
right;  meaning  thereby  a  remedial  right,  and  intending  to  include  in  the 
division  those  remedies  which  are  exclusively  equitable.  Under  this  head 
he  places  Specific  Performance,  Reformation,  Cancellation  and  Rescission, 
Injunction,  Bills  of  Peace  and  to  Quiet  Title,  Suits  to  Foreclose  or  to 
Redeem  Mortgages,  Enforcement  of  Trusts,  and  others.  2.  Jurisdiction 
in  cases  in  which  the  law  courts  cannot  administer  a  right, — that  is,  cannot 
fully  and  advantageously  enforce  it ;  the  division  including  remedies  which 
are  within  the  concurrent  jurisdiction  of  equity.  Under  this  head  he 
ranges  Account,  Partition,  Settlement  of  Partnership  Matters  and  Estates 
of  Decedents,  Marshaling  of  Assets,  Contribution  and  Exoneration,  etc. 
3.  Jurisdiction  which  is  wholly  auxiliary,  including  only  Discovery,  Per- 
petuation of  Testimony,  and  Examination  of  Witnesses  abroad.  This 
author  is  perfectly  consistent  in  following  out  the  principles  which  he 
has  adopted;  and  he  does  not  fall  into  the  common  error  of  taking  fraud, 
mistake,  accident,  and  the  like  as  distinct  heads  of  equity  jurisprudence. 
The  result  is,  that  Mr.  Adams's  book  is  clear,  distinct,  Avithout  confusion, 
and  from  his  stand-point  presents  a  very  correct  and  consistent  view  of 
equity.  But  this  view  is  certainly  a  partial  one.  The  representation  of 
equity  as  consisting  wholly  of  remedies  is  incorrect  in  its  fundamental 
conception,  and  when  all  equitable  primary  rights,  interests,  and  estates 
are  treated  merely  as  incidents  of  the  remedies,  such  a  representation 
is  actually  made,  even  though  it  was  undesigned  on  the  part  of  the  author. 

§  123,  2  It  cannot  be  denied  that  Judge  Story's  Commentaries  are  liable 
to  this  criticism,  axid  the  result  is  plainly  shown  in  his  classification  and 


145  THE    PRINCIPLES    OF    CLASSIFICATION.  §  124 

§  124.  Even  if  the  plan  of  classification  according  to 
the  nature  of  the  equity  jurisdiction,  considered  in  its  re- 
lations with  that  of  the  law,  possessed  at  one  time  certain 
practical  advantages  which  on  the  whole  rendered  it  pref- 
erable to  any  other  (and  I  do  not  admit  this  proposition 
as  unquestionably  true),  the  recent  and  great  changes 
made  by  statute  have,  in  England,  and  in  many  of  the 
states  entirely,  and  in  other  states  to  a  large  extent,  de- 
stroyed the  basis  of  fact — the  relations  between  equity  and 
the  law — upon  which  the  very  principles  of  the  classifica- 
tion were  founded.  In  England  and  in  all  the  common- 
wealths of  this  country  where  the  reformed  procedure  pre- 
vails, there  is  no  longer  any  auxiliary  jurisdiction  of 
equity,  nor  any  reason  for  calling  its  remaining  functions 
either  exclusive  or  concurrent,  since  legal  and  equitable 
primary  rights  are  maintained,  legal  and  equitable  reme- 
dial rights  are  enforced,  and  legal  and  equitable  remedies 
are  granted  by  the  same  tribunal  and  in  the  same  action. 
In  most  of  the  remaining  states  where  the  two  jurisdic- 
tions are  still  kept  distinct,  the  ''auxiliary"  equitable  pro- 
ceedings have  either  been  abolished  or  have  become  prac- 
tically obsolete;^  and  in  all  of  them  the  powers  of  the 
law  courts  have  been  so  enlarged,  equitable  rights  and  in- 
terests are  to  such  an  extent  cognizable  by  way  of  defense 
in  legal  actions,  and  so  many  matters  which  once  came 
within  the  province  of  equity  have  been  placed  under  a 
complete  system  of  statutory  regulation,  and  their  admin- 

(•cirrangement  and  treatment  of  particular  topics.  While  certain  remedies 
f;ae  properly  ranged  under  the  exclusive  jurisdiction,  and  others  under 
fjie  concurrent,  as  is  done  by  Mr.  Adams,  this  criterion  is  often  abandoned ; 
;no  clear  distinction  is  made  between  remedies  or  the  rights  to  them,  and 
I  he  equitable  estates,  interests,  rights,  and  obligations  which  are  primary 
in  their  nature;  and  finally,  the  mere  external  facts  of  fraud,  mistake, 
etc.,  are  regarded  as  veritable  and  important  heads  of  equity  jurispru- 
dence, and  are  discussed  at  great  length. 

§  124,  (a)  The    text    is    cited    to  this  effect  in  Becker  v.  Frederick  W. 
Lipps  Co.  (Md.),  101  Atl.  783. 
I— 10 


§  125  EQUITY   JURISPRUDENCE.  146 

istration  given  to  special  tribunals,  that  the  ancient  sep- 
aration into  exclusive  jurisdiction  no  longer  furnishes  an 
adequate  nor  even  a  true  principle  upon  which  to  classify 
the  body  of  equity  jurisprudence.  This  method,  which 
has  been  commonly  adopted  by  text-writers,  is  therefore 
in  direct  conflict  with  the  reformed  procedure  now  used  in 
more  than  half  of  the  states  and  territories,  as  well  as  in 
England  and  its  chief  colonial  dependencies;  and  it  is  also 
opposed  to  the  tendencies  of  legislation  in  all  the  other 
states,  with  a  very  few  exceptions.  There  is  nothing  which 
so  hinders  the  progress  of  legal  reform,  and  so  long  de- 
lays the  general  acceptance  according  to  its  true  intent  of 
a  new  legal  system,  as  the  persistent  retention  of  the 
nomenclature,  methods,  and  classification  which  had  been 
established  as  the  outgrowth  and  formal  expression  of  the 
ancient  notions  discarded  and  abandoned  by  the  legislative 
enactment.  For  this  reason,  if  for  no  other,  I  am  strongly 
of  the  opinion  that  a  plan  of  arranging  and  presenting  the 
equity  jurisprudence  which  had  its  origin  solely  in  the  fact 
that  law  and  equity  were  originally  two  distinct  jurisdic- 
tions, and  were  administered  by  separate  tribunals,  is  not 
at  all  adapted  to  the  condition  of  the  municipal  law,  and 
of  the  relations  between  its  departments,  which  now  exists 
throughout  the  United  States,  nor  to  the  national  tenden- 
cies shown  in  the  changes  which  are  constantly  made  by 
the  state  legislatures,  especially  the  tendencies  towards  a 
scientific  revision  and  codification  of  the  municipal  law, 
which  will  more  and  more  obliterate  the  external  distinc- 
tions between  equity  and  the  law. 

§  125.  There  is,  however,  another,  and  as  it  seems  to 
me  more  fundamental,  objection  to  this  method  of  classifi- 
cation, based  upon  the  assumed  relations  between  legal 
and  equitable  jurisdiction.  Whenever  some  single  feature 
or  partial  element  of  an  extensive  system  is  taken  as  the 
basis  of  classifying  its  component  parts,  the  inevitable  re- 
sult must  be  an  imperfect  and  even  incorrect  view  of  the 


147  THE    PRINCIPLES    OF    CLASSIFICATION.  §  126 

system  as  a  whole.  The  choice  of  the  equitable  remodios 
alone  as  the  fixed  points  to  which  all  doctrines  and  rules 
are  referred,  and  the  classification  of  these  remedies  solely- 
according  to  their  relations  with  the  jurisdictions  pos- 
sessed by  the  two  courts,  have  tended  irresistibly  to  pro- 
duce a  confused  and  one-sided  conception  of  the  nature 
and  functions  of  equity.^  Under  the  influence  of  such  a 
conception,  some  writers  have  taught  that  equity  consists 
entirely  of  certain  remedies,  and  have  denied  that  it  creates 
any  primary  rights  and  duties  whatever.  I  have  already 
shown  the  erroneous  character  of  this  theory,  and  shall 
not  dwell  upon  it  further. 

§  126.  True  Principles  of  Classification. — A  comprehen- 
sive treatment  of  equity  which  shall  conform  to  its  real 
nature  and  its  present  condition  as  a  branch  of  the  juris- 
prudence now  existing  in  the  United  States  should  pre- 
sent all  of  its  component  parts  in  their  true  relations  with 
each  other  and  with  the  law,  and  should  adopt  such  prin- 
ciples of  classification  as  will  follow  the  essential  lines  of 
separation  between  these  parts,  and  furnish  a  correct  and 
practical  guide  for  the  student  and  the  lawyer.  No  method 
can  be  accurate  nor  really  practical  which,  in  the  first 
place,  does  not  recognize  the  fact  that  equity  consists  of 
two  grand  divisions,  the  Primary  Rights  and  Duties,  Es- 
tates and  Interests  which  it  creates,  and  the  Remedial 
Rights  and  Duties  enforced  by  the  various  Remedies  which 
it  confers;  and  which,  in  the  second  place,  does  not  pre- 
sent the  principles,  doctrines,  and  rules  concerning  these 
Primary  Rights,  Estates,  and  Interests,  separate  and  dis- 
tinct from  those  which  relate  to  the  Remedial  Rights  and 
Remedies.     The  classification  of  the  remedies,  being  no 

§  125,  1  As  an  illustration  of  this  proposition,  it  is  impossible  to  lay 
down  any  comprehensive,  complete,  and  accurate  rules  concerning  the 
extent  of  the  equity  jurisdiction,  when  the  equitable  and  legal  remedies 
are  taken  as  the  only  elements  for  determining  the  question.  The  primary 
rights,  estates,  and  interests  created  by  equity  must  necessarily  enter  into 
any  general  solution  of  the  problem. 


§  127  EQUITY   JURISPRUDENCE.  148 

longer  based  upon  any  notion  of  exclusive  and  concurrent 
jurisdictions,  should  be  made  in  accordance  with  their  own 
inherent  nature  and  the  nature  of  the  primary  rights,  the 
violation  of  which  they  are  intended  to  redress  or  relieve. 
Underlying  these  equitable  estates,  interests,  and  rights, 
and  these  equitable  remedies,  and  constituting  the  sources 
from  which  most  of  them  have  been  derived,  there  are  cer- 
tain equitable  principles  of  a  most  broad,  comprehensive, 
and  general  nature  and  application.  These  principles  run 
through  every  branch  of  th"e  equity  jurisprudence;  from 
them  a  large  part  of  the  particular  doctrines  and  rules  of 
that  system,  both  concerning  equitable  estates  and  inter- 
ests, and  equitable  remedies,  have  been  developed.  They 
seem  to  require,  therefore,  in  any  well-constructed  arrange- 
ment, a  separate  treatment,  preliminary  to  the  examina- 
tion of  those  more  special  topics  which  are  directly  con- 
nected with  the  equitable  estates,  interests,  rights,  and 
remedies. 

§  127.  The  order  which  should  be  observed  in  the  treat- 
ment of  these  two  grand  divisions  which  make  up  the  whole 
of  equity  jurisprudence  may  well  be  determined  by  consid- 
erations of  convenience,  rather  than  by  the  requirements 
of  a  scientific  precision.  The  division  of  equity  which  is 
concerned  solely  with  remedies  is  much  broader  and  more 
comprehensive  than  that  which  is  concerned  with  equitable 
primary  rights  and  interests.  The  remedies  administered 
by  equity  are  not  confined  to  cases  in  which  equitable  pri- 
mary rights  have  been  violated;  they  are  not  restricted  to 
the  single  purpose  of  maintaining  equitable  estates  and 
interests.  As  has  already  been  stated  in  a  preceding  sec- 
tion, the  peculiar  reliefs  of  equity  are  given,  under  certain 
well-established  conditions  of  fact,  for  the  violation  of  legal 
primary  rights  and  for  the  protection  and  support  of  legal 
estates  and  interests.  In  other  words,  while  every  equi- 
table right  and  interest  is  enforced  and  preserved  by  an 
appropriate  equitable  remedy,  the  remedial  jurisdiction  of 
equity  extends  beyond  these  somewhat  narrow  limits,  and 


149  THE    PRINCIPLES    OF    CLASSIFICATION.  §  128 

embraces  many  classes  of  legal  rights  and  interests  for 
the  violation  of  which,  under  the  existing  circumstances, 
the  law  gives  no  adequate  relief.  Before,  however,  enter- 
ing upon  either  of  these  two  grand  divisions  of  the  work, 
a  preliminary  investigation  into  the  nature  and  extent  of 
the  equity  jurisdiction  is  necessary  as  a  foundation  for  all 
subsequent  discussions. 

§  128.  I  shall  in  the  following  treatise  adopt  the  general 
plan,  principles  of  classification,  and  method  of  treatment 
described  in  the  foregoing  paragraphs.  The  entire  work 
will  be  separated  into  four  parts.  Part  First  will  contain 
an  inquiry  into  the  nature  and  extent  of  the  Equity  Juris- 
diction as  it  now  exists  in  the  United  States,  both  in  its 
original  and  general  form,  and  as  limited  or  regulated  by 
the  statutory  legislation  of  the  various  states  and  of  the 
Congress  of  the  United  States.  The  three  remaining  parts 
will  treat  of  the  Equity  Jurisprudence,  or  the  doctrines 
which  are  administered  by  the  courts  in  the  exercise  of 
their  equitable  jurisdiction.  Part  Second  will  discuss  the 
grand  principles  and  maxims  which  are  the  foundation  of 
Equity  Jurisprudence,  and  the  sources  of  its  particular 
doctrines,  and  will  also  describe  some  of  the  most  impor- 
tant facts  and  events  which  are  the  occasions  of  equitable 
primary  and  remedial  rights  and  duties.  Part  Third  will 
contain  that  portion  of  Equity  Jurisprudence  which  con- 
sists of  Primary  Rights  and  Duties,  or  in  other  words,  of 
equitable  estates,  titles,  and  interests.  Part  Fourth  will 
contain  that  portion  of  Equity  Jurisprudence  which  con- 
sists of  remedial  rights  and  duties  and  of  remedies.  This 
description  does  not  include  any  discussion  of  mere  pro- 
cedure. The  term  ** Remedies,"  as  it  has  been  defined, 
and  as  it  will  be  used  throughout  the  book,  does  not  em- 
brace the  rules  of  procedure,  but  only  the  reliefs  which  are 
granted  for  a  violation,  actual  or  threatened,  of  legal  and 
equitable  rights. 


PART  FIRST. 


PART  FIRST. 

THE  NATURE  AND  EXTENT  OF  EQUITY 
JUKISDICTION. 


CHAPTER  FIRST. 

THE    GENERAL    DOCTRINE    CONCERNING    THE 
JURISDICTION. 


SECTION  I. 

FUNDAMENTAL  PRINCIPLES  AND  DIVISIONS. 

ANALYSIS. 

Equity  jurisdiction  defined. 

Requisites  in  order  that  a  case  may  come  within  it. 

Distinction  between  the  existence  of  equity  jurisdiction  and  the 
proper  exercise  of  it. 

Inadequacy  of  legal  remedies,  how  far  the  test. 

Equity  jurisdiction  depends  on  two  facts:  the  existence  of  equi- 
table interests,  and  the  inadequacy  of  legal  remedies. 

How  far  the  jurisdiction  is  in  personam,  how  far  in  rem. 

Equity-  jurisdiction  threefold, — exclusive,  concurrent,  and  aux- 
iliary. 

What  embraced  in  the  exclusive  jurisdiction. 

What  embraced  in  the  concurrent  jurisdiction. 

Cases  may  fall  under  both. 

What  embraced  in  the  auxiliary  jurisdiction. 

Order  of  subjects. 

§  129.  Equitable  Jurisdiction  Defined. — It  is  important 
to  obtain  at  tlie  outset  a  clear  and  accurate  notion  of  what 
is  meant  by  the  term  ** Equity  Jurisdiction."  It  is  used 
in  contradistinction  to  "jurisdiction"  in  general,  and  to 
''common-law  jurisdiction"  in  particular.  In  its  most 
general  sense  the  term  ''jurisdiction,"  when  applied  to  a 
court,  is  the  power  residing  in  such  court  to  determine 

(153) 


§129. 

§130. 

§131. 

§132. 

§133. 

§§  134,  135. 

§136. 

§§  137,  138. 

§§  139, 140. 

§141. 

§§  142-144. 

§145. 

§  129  EQUITY   JUEISPRUDENCE.  154 

judicially  a  given  action,  controversy,  or  question  pre- 
sented to  it  for  decision.  If  this  power  does  not  exist  with 
reference  to  any  particular  case,  its  determination  by  the 
court  is  an  absolute  nullity;  if  it  does  exist,  the  determina- 
tion, however  erroneous  in  fact  or  in  law,  is  binding  upon 
the  parties  until  reversed  or  set  aside  in  some  proceeding 
authorized  by  the  practice,  and  brought  for  that  express 
purpose.  1  «•     It  is  plain  that  the  term  used  in  this  strict 

§  129,  1  The  true  meaning  of  "jurisdiction"  is  so  often  misunderstood, 
and  the  word  is  so  often  misapplied,  that  I  shall  quote  a  passage  from 
the  opinion  of  Mr.  Justice  Folger  in  the  recent  case  of  Hunt  v.  Hunt, 
72  N.  Y.  217,  228-230,  28  Am.  Rep.  129,  in  which  the  subject  is  ex- 
plained in  a  very  clear  and  convincing  manner:  "Jurisdiction  of  the 
subject-matter  does  not  depend  upon  the  ultimate  existence  of  a  good 
cause  of  action  in  the  plaintiff  in  the  particular  case.  See  Groenvelt  v. 
Burwell,  1  Ld.  Raym.  466,  467.  A  court  may  have  jurisdiction  of  all 
actions  in  assumpsit  of  that  subject-matter.  An  action  by  A  in  which 
judgment  is  demanded  against  B,  as  the  indorser  of  a  promissory  note, 
falls  within  that  jurisdiction.  Such  court  may  entertain  and  try  the 
action,  and  give  a  valid  and  effectual  judgment  in  it.  Though  it  should 
appear  in  proof  that  there  never  had  been  presentment  and  demand,  nor 
notice  of  non-payment,  yet  a  judgment  for  A  against  B,  though  against 
the  facts,  without  facts  to  sustain  it,  would  not  be  void  as  rendered 
without  jurisdiction.  It  would  be  erroneous,  and  liable  to  reversal  on 
review.  Until  reviewed  and  reversed,  it  would  be  valid  and  enforceable 
against  B,  and  entitled  to  credit  when  brought  in  play  collaterally.  Juris- 
diction of  the  subject-matter  is  power  to  adjudge  concerning  the  general 
question  involved,  and  is  not  dependent  upon  the  state  of  facts  which 
may  appear  in  a  particular  case,  arising,  or  which  is  claimed  to  have 
arisen,  under  that  general  question.  One  court  has  jurisdiction  in  crim- 
inal cases;  another  in  civil  cases;  each  in  its  sphere  has  jurisdiction  of  the 
subject-matter.  Yet  the  facts,  i.  e.,  the  acts  of  the  party  proceeded 
against,  may  be  the  same  in  a  civil  case  as  in  a  criminal  case;  as,  for 
instance,  in  a  civil  action  for  false  and  fraudulent  representations  and 
deceit,  and  in  a  criminal  action  for  obtaining  property  by  false  pretenses. 
We  should  not  say  that  the  court  of  civil  poAvers  had  jurisdiction  of  the 

§  129,   (a)   The    text   is   quoted   in  structive  case,  Miller  v.  Rowan,  251 

Venner  y.  Great  Northern  Ey.  Co.,  HI.  344,  96  N.  E.  285   (decree  con- 

153    Fed.    (N.   Y.)    408;    in    Tonnele  struing  will  where  only  legal  estates 

V.  Wetmore,  195  N.  Y.  436,  88  N.  E.  involved,      though      erroneous,      not 

1068;  cited  and  followed  in   the  in-  void). 


155  FUNDAMENTAL.   PRINCIPLES   AND   DIVISIONS.  §  129 

sense  may  be  applied  to  courts  of  equity  as  well  as  to  any 
other  tribunals.  With  this  signification  of  the  word,  it 
would  be  said  that  an  equity  court  has  no  jurisdiction  to 
try  the  issues  arising  upon  an  indictment,  and  to  render 
judgment  in  a  criminal  prosecution;  the  entire  proceeding 
would  be  null  and  void.  On  the  other  hand,  it  is  equally 
plain  that  this  strict  meaning  is  not  always  given  to  the 
term  ^'equity  jurisdiction,"  as  it  is  ordinarily  used.  The 
proceedings  and  judgment  of  a  court  of  chancery  or  of  a 
court  clothed  with  equity  powers  are  not  necessarily  null 
and  void  because  the  action  is  not  one  which  comes  within 
the  scope  of  the  ''equity  jurisdiction"  in  the  common 
acceptation  of  that  phrase,  or  in  other  words,  because  the 
claim  is  one  for  which  there  is  a  full,  adequate,  and  com- 
plete remedy  at  law.^  ^     This  well-settled  rule  furnishes  a 

criminal  action,  nor  vice  versa,  though  each  had  power  to  pass  upon 
allegations  of  the  same  facts.  So  there  is  a  more  general  meaning 
to  the  phrase  'subject-matter,'  in  this  connection,  than  power  to  act  upon 
a  particular  state  of  facts.  It  is  the  power  to  act  upon  the  general,  and, 
so  to  speak,  the  abstract,  question,  and  to  determine  and  adjudge  whether 
the  particular  facts  presented  call  for  the  exercise  of  the  abstract  power. 
A  suitor  for  a  divorce  may  come  into  any  court  of  the  state  in  which  he 
is  domiciled,  which  is  empowered  to  entertain  a  suit  therefor,  and  to 
give  judgment  between  husband  and  wife  of  a  dissolution  of  their  married 
state.  If  he  does  not  establish  a  cause  for  divorce,  jurisdiction  to  pro- 
nounce judgment  does  not  leave  the  court.  It  has  power  to  give  judgment 
that  he  has  not  made  out  a  case.  That  judgment  would  be  so  valid  and 
effectual  as  to  bind  him  thereafter,  and  to  be  res  adjudicata  as  to  him 
in  another  like  attempt  by  him.  If  that  court,  however,  should  err,  and 
give  judgment  that  he  had  made  out  his  case,  jurisdiction  remains  in  it 
so  to  do.  The  error  is  to  be  corrected  in  that  very  action.  It  may  not 
be  shown  collaterally  to  avoid  the  judgment,  while  it  stands  unreversed. 
The  judgment  is  in  such  case  also  res  adjudicata  against  the  party  cast 
in  the  judgment.  We  conclude  that  jurisdiction  of  the  subject-matter 
is  the  power  lawfully  confen-ed  to  deal  with  the  general  subject  involved 
in  the  action." 

§  129,  2  Bank  of  Utica  v.  Mersereau,  3  Barb.  Ch.  528 ;  Cummings  v. 
Mayor,  etc.,  11  Paige,  596;  Creely  v.  Bay  State  B.  Co.,  103  Mass.  514; 

§129,   (b)   The   text   is   quoted   in   Tonnele   v.   Wetmore,    195   N,   Y.   436, 
88  N.  E.  1068. 


§  130  EQUITY   JURISPRUDENCE.  156 

decisive  test,  and  shows  that  when  ordinarily  speaking  of 
the  ''equity  jurisdiction"  we  do  not  thereby  refer  to  the 
general  power  inherent  in  a  court  to  decide  a  controversy 
at  all, — a  power  so  essential  that  its  absence  renders  the 
decision  a  mere  nullity,  but  we  intend  by  the  phrase  to  de- 
scribe some  more  special  and  limited  judicial  authority. 

§130.  ** Equity  jurisdiction,"  therefore,  in  its  ordinary 
acceptation,  as  distinguished  on  the  one  side  from  the  gen- 
eral power  to  decide  matters  at  all,  and  on  the  other  from 
the  jurisdiction  "at  law"  or  ''common-law  jurisdiction," 
is  the  power  to  hear  certain  kinds  and  classes  of  civil  causes 
according  to  the  principles  of  the  method  and  procedure 
adopted  by  the  court  of  chancery,  and  to  decide  them  in 
accordance  with  the  doctrines  and  rules  of  equity  jurispru- 
dence, which  decision  may  involve  either  the  determination 
of  the  equitable  rights,  estates,  and  interests  of  the  parties 
to  such  causes,  or  the  granting  of  equitable  remedies.  In 
order  that  a  cause  may  come  within  the  scope  of  the  equity 
jurisdiction,  one  of  two  alternatives  is  essential ;  either  the 
primary  right,  estate,  or  interest  to  be  maintained,  or  the 
violation  of  which  furnishes  the  cause  of  action,  must  be 
equitable  rather  than  legal ;  ^  *  or  the  remedy  granted  must 

Amis  V.  Myers,  16  How.  492,  493 ;  Sexton  v.  Pike,  13  Ark.  193.  In  some 
instances  where  the  facts  very  clearly  bring  the  ease  within  the  common- 
law  jurisdiction,  the  court  of  equity  will  itself  take  the  objection  at  any 
stage  of  the  suit  and  dismiss  it,  even  though  no  objection  had  been  raised 
by  the  parties;  but  even  in  such  cases  a  judgment  of  the  equity  court 
sustaining  the  action  and  granting  the  relief  would  not  necessarily  be  a 
nullity.  See  Parker  v.  Winnipiseogee  Co.,  2  Black,  545,  550,  551 ;  Hipp 
V.  Babin,  19  How.  271,  277,  278. 

§  ISO,  1  Reese  v.  Bradford,  13  Ala.  837 ;  Sessions  v.  Sessions,  33  Ala. 
522,  525;  Torrey  v.  Camden,  etc.,  R.  R.  Co.,  18  N.  J.  Eq.  293;  Ontario 
Bank  v.  Mumford,  2  Barb.  Ch.  596,  615;  Woodruff  v.  Robb,  19  Ohio,  212, 
214;  Wolfe  v.  Scarborough,  2  Ohio  St.  361,  368;  Heilman  v.  Union  Canal 
Co.,  37  Pa.  St.  100,  104;  McCullough  v.  Walker,  20  Ala.  389,  391;  Wol- 

§  130,   (a)   The    text   is   quoted   in       Deposit    &   Trust    Co.   v.    Cahn,    102 
Venner   v.   Great   Northern   Ey.   Co.       Md.  530,  62  Atl.  819. 
(C.  C.  N.  Y.),  153  Fed.  408;  in  Safe 


157  FUNDAMENTAL   PRINCIPLES    AND    DIVISIONS.  §  130 

be  in  its  nature  purely  equitable,  or  if  it  be  a  remedy  which 
may  also  be  given  by  a  court  of  law,  it  must  be  one  which, 
under  the  facts  and  circumstances  of  the  case,  can  only  be 
made  complete  and  adequate  through  the  equitable  modes 
of  procedure. 2  At  the  same  time,  if  a  court  clothed  with 
the  equity  jurisdiction  as  thus  described  should  hear  and 
decide,  according  to  equitable  methods,  a  case  which  did 
not  fall  within  the  scope  of  the  equity  jurisprudence,  be- 
cause both  the  primary  right  invaded  constituting  the  cause 
of  action  and  the  remedy  granted  were  wholly  legal,  and 
belonging  properly  to  the  domain  of  the  law  courts,  such 
judgment,  however  erroneous  it  might  be  and  liable  to  re- 

eott  V.  Robbins,  26  Conn.  236;  Green  v.  Spring,  43  111.  280;  Vick  v. 
Percy,  7  Smedes  &  M.  256,  268,  45  Am.  Dec.  303;  Abbott  v.  Allen,  2 
Johns.  Ch.  519,  7  Am.  Dec.  554;  Waddell  v.  Beach,  9  N.  J.  Eq.  793,  795; 
Milton  V.  Hogue,  4  Ired.  Eq.  415,  422;  Johnson  v.  Connecticut  Bank,  21 
Conn.  148,  157;  Perkins  v.  Perkins,  16  Mich.  162,  167;  BoUes  v.  Carli, 
12  Minn.  113,  120;  Echols  v.  Hammond,  30  Miss.  177;  Hipp  v.  Babin, 
19  How.  271,  277,  278;  Wing  v.  HaU,  44  Vt.  118,  123;  Detroit  v.  Board 
of  Public  Works,  23  Mich.  546,  552;  Simmons  v.  Hendricks,  8  Ired.  Eq. 
84-86,  55  Am.  Dec.  439;  Pratt  v.  Northam,  5  Mason,  95,  104;  Thompson 
V.  Brown,  4  Johns.  Ch.  619,  631;  Hunt  v.  Danforth,  2  Curt.  592,  603; 
Gay  V.  Edwards,  30  Miss.  218,  230;  Bush  v.  Golden,  17  Conn.  594;  GiUiam 
V.  Chancellor,  43  Miss.  437,  5  Am.  Rep.  498. 

§  130,  2  Brinkerhofie  v.  Brown,  4  Johns.  Ch.  671 ;  Mason  v.  Piggott,  11 
111.  85,  89;  Claussen  v.  Lafrenz,  4  G.  Greene,  22^227;  Kimball  v.  Grafton 
Bank,  20  N.  H.  347,  352 ;  Person  v.  Sanger,  Daveis,  252,  259,  261 ;  Curtis 
V.  Blair,  26  Miss.  309,  327,  59  Am.  Dec.  257;  Dickenson  v.  Stoll,  8  N.  J.  Eq. 
294,  298;  Perkins  v.  Perkins,  16  Mich.  162,  167;  Barrett  v.  Sargeant,  18 
Vt.  365,  369 ;  Jordan  v.  Faircloth,  27  Ga.  372,  376 ;  Bassett  v.  Brown,  100 
Mass.  355;  Morgan  v.  Palmer,  48  N.  H.  336;  Hall  v.  Joiner,  1  S.  C.  186; 
Matter  of  Broderick's  Will,  21  Wall.  503,  504;  Comstock  v.  Henneberry, 
66  111.  212;  Suter  v.  Matthews,  115  Mass.  253;  Santacruz  v.  Santacruz, 
44  Miss.  714,  720;  Glastenbury  v.  McDonald's  Administrator,  44  Vt.  450, 
453;  Brandon  v.  Brandon,  46  Miss.  222,  231;  Scruggs  v.  Blair,  44  Miss. 
406,  412;  Carr  v.  Silloway,  105  Mass.  543;  Sanborn  v.  Braley,  47  Vt. 
171;  Doremus  v.  Williams,  4  Hun,  458;  Carlisle  v.  Cooper,  21  N.  J.  Eq. 
576;  Edsell  v.  Briggs,  20  Mich.  429;  McGunn  v.  Huntin,  29  Mich.  477; 
Gay  V.  Edwards,  30  Miss.  218,  230. 


§  130  EQUITY    JURISPRUDENCE.  158 

versal,  would  not  necessarily  be  null  and  void.^  ^  On  the 
contrary,  as  will  be  more  fully  stated  hereafter,  the  objec- 
tion that  the  case  does  not  come  within  this  so-called  equity 
jurisdiction  must  ordinarily  be  definitely  raised  by  the  de- 
fendant at  the  commencement  of  the  proceedings,  or  else 
it  will  be  regarded  as  waived,  and  the  judgment  will  not 
even  be  erroneous.^  <^^  In  some  instances,  however,  where 
the  equitable  functions  of  the  court  are  specitically  defined 
by  statute,  or  the  facts  show  very  clearly  that  the  rights 
involved  in  the  controversy  and  the  remedies  demanded  are 
purely  legal,  and  completely  within  the  scope  of  ordinary 
legal  proceedings,  the  court  of  equity  will  itself  take  the 
objection  at  any  stage  of  the  cause,  and  will  dismiss  the 
suit,  although  no  objection  has  in  any  way  been  raised  by 
the  parties.^  ^ 

§  130,  3  This  conclusion  results  from  the  principle  laid  down  by  Folger, 
J.,  in  the  passage  above  cited.  If  the  court  has  jurisdiction  over  the 
subject-matter  of  equitable  rights,  interests,  and  remedies,  its  jurisdiction 
does  not  depend  upon  its  deciding  correctly  as  to  the  existence  of  such 
rights,  or  as  to  the  granting  of  such  remedies.  The  jurisdiction  itself 
exists  independently  of  the  particular  case  over  which  it  is  exercised; 
jurisdiction,  in  its  most  general  and  accurate  sense  of  a  power  to  decide 
concerning  certain  subject-matter,  involves  the  power  to  decide  wrongly 
as  well  as  correctly. 

§130,  4  Cummings  v.  Mayor,  etc.,  11  Paige,  596;  Bank  of  Utica  v. 
Mersereau,  3  Barb.  Ch.  528;  Amis  v.  Myers,  16  How.  492;  Creely  v.  Bay 
State  B.  Co.,  103  Mass.  514;  Sexton  v.  Pike,  13  Ark.  193. 

§  130,  5  Hipp  V.  Babin,  19  How.  271,  278 ;  Parker  v.  Winnipiseogee 
Co.,  2  Black,  545,  550,  551. 

§  130,   (b)   The    text   is   quoted   in  v.  Eowan,  251  HI.  344,  96  N.  E.  285 

Venner   v.   Great   Northern   Ry.    Co.  (decree   construing  will  where   only 

(C.  C.  N.  Y.),  153  Fed.  408;  in  Ton-  legal    estates    involved,    though    er- 

nele  v.  Wetmore,  195  N.  Y.  436,  88  roneous,  not  void). 
N.   E.   1068;   cited   to   this   effect  in  §130,  (c)   The    text    is    quoted   in 

Freer  v.  Davis,  52  W.  Va.  1,  94  Am.  Tonnele  v.  Wetmore,  195  N.  Y.  436, 

St.  Rep.  895,  43  S.  E.  164,  172,  dis-  88  N.  E.  1068.     See,  also,  Miller  v. 

senting  opinion;   the  majority  hold-  Eowan,  251  111.   344,   96  N.  E.  285; 

ing     that     consent     cannot     confer  Hill  v.  St.  Louis  &  N.  E.  Ey.  Co., 

jurisdiction   to   try   a   disputed   title  243  HI.   344,  90  N.  E.   676. 
in  suit  to  enjoin  trespass.     The  text  §  130,  (d)  This  passage  of  the  text 

is  supported   by  the   case   of   Miller  is    quoted   in    Hanna    v.    Eeeves,    22 


159  FUNDAMENTAL    PRINCIPLES    AND    DIVISIONS.  §  131 

§  131.  It  is  plain,  from  the  foregoing  definitions,  that 
the  question  whether  a  given  case  falls  within  the  equity 
jurisdiction  is  entirely  different  and  should  be  most  care- 
fully distinguished  from  the  question  whether  such  case  is 
one  in  which  the  relief  peculiar  to  that  jurisdiction  should 
be  granted,  or  in  which  the  equity  powers  of  the  court 
should  be  exercised  in  maintaining  the  primary  right,  es- 
tate, or  interest  of  the  plaintiff.  The  constant  tendency  to 
confound  these  two  subjects,  so  essentially  different,  has 
been  productive  of  much  confusion  in  the  discussion  of  equi- 
table doctrines.  Equity  jurisdiction  is  distinct  from  equity 
jurisprudence.  One  example  will  suffice  to  illustrate  this 
important  proposition.  A  suit  to  enforce  the  specific  per- 
formance of  a  contract,  or  to  reform  a  written  instrument 
on  the  ground  of  mistake,  must  always  belong  to  the  equity 
jurisdiction,  and  to  it  alone,  since  these  remedies  are  wholly 
beyond  the  scope  of  common-law  methods  and  courts;  but 
whether  the  relief  of  a  specific  performance,  or  of  a  refor- 
mation, shall  be  granted  in  any  given  case,  must  be  deter- 
mined by  an  application  of  the  doctrines  of  equity  jurispru- 
dence to  the  special  facts  and  circumstances  of  that  case.* 
The  same  is  true  of  every  species  of  remedy  which  may  be 
conferred,  and  of  every  kind  of  primary  right,  estate,  or  in- 
terest which  may  be  enforced  or  maintained,  by  a  court  pos- 
sessing the  equitable  jurisdiction.  In  other  words,  the 
equity  jurisdiction  may  exist  over  a  case,  although  it  is  one 
which  the  doctrines  of  equity  jurisprudence  forbid  any  re- 
lief to  be  given,  or  any  right  to  be  maintained.  This  con- 
clusion is  very  plain,  and  even  commonplace;  and  yet  the 
''equity  jurisdiction"  is  constantly  confounded  with  the 
right  of  the  plaintiff  to  maintain  his  suit,  and  to  obtain  the 

Wash.   6,   60    Pac.   62,   but   held   not  (C.    C.   N.    Y.),    153    Fed.    408.     The 

applicable  to  the  facts  of  the  case.  text   is    cited   in    Thorn    &   Hunkins 

§  131  (a)  Distinction  Between  the  Lime  &  Cement  Co.  v.  Citizens'  Bank, 

Existence  of  EcLUity  Jurisdiction  and  158  Mo.  272,  59  S.  W.  109;  Hanson 

the  Proper  Exercise  of  It.— The  first  v.    Neal,    215     Mo.    256,    114   S.    W. 

half  of  this  paragraph  is  quoted  in  1073. 
Venner  v.   Great   Northern   Ey.   Co. 


§  132  EQUITY    JURISPRUDENCE.  160 

equitable  relief.  This  is,  in  fact,  making  the  power  to  de- 
cide whether  equitable  relief  should  be  granted  to  depend 
upon,  and  even  to  be  identical  with,  the  actual  granting  of 
such  relief. 

§  132.  Extent  of  the  Jurisdiction. — Having  thus  gener- 
ally defined  ''equity  jurisdiction,"  I  shall  proceed  with  the 
most  important  and  practical  inquiry  as  to  its  extent  and 
limitations,  and  with  the  examination  of  the  kinds  and 
classes  of  cases  over  which  it  may  be  exercised.  The  at- 
tempt has  been  made  to  furnish  one  comprehensive  test  for 
the  solution  of  all  questions  which  may  arise  as  to  the  exist- 
ence of  the  jurisdiction, — to  reduce  all  special  rules  to  one 
general  formula.  To  this  end,  it  has  often  been  said  by 
courts  as  well  as  by  text-writers  that  the  equity  jurisdic- 
tion extends  to  and  embraces  all  civil  cases,  and  none 
others,  in  which  there  is  not  a  full,  adequate,  and  complete 
remedy  at  law.i  As  has  already  been  stated,  some  writers 
have  gone  so  far  as  to  assert  that  equity  jurisprudence  con- 
sists wholly  in  a  system  of  remedies,  and  that  the  only 
rights  created  and  conferred  by  it  are  remedial  rights,  that 
is,  rights  to  obtain  some  remedy;  and  according  to  their 
theory,  its  jurisdiction  is  of  course  to  be  measured  by  the 
absence  or  existence  of  adequate  remedies  at  the  law.^ 

§  132,  1  See,  as  illustrations,  the  following  among  many  such  cases : 
Earl  of  Oxford's  Case,  1  Ch.  Rep.  1,  2  Lead.  Cas.  Eq.  1291,  and  notes; 
Grand  Chute  v.  Winegar,  15  Wall.  373;  Insurance  Co.  v.  Bailey,  13  Wall. 
616;  Hipp  V,  Babin,  19  How.  271,  278;  Parker  v.  Winnipiseogee  Lake, 
etc.,  Co.,  2  Black,  545,  550,  551. 

§  132,  2  See  Adams's  Equity,  Introduction,  p.  9,  6th  Am.  ed.  Mr. 
Adams  says :  Eqiaity  "does  not  create  rights  which  the  common  law  denies ; 
but  it  gives  effectual  redress  for  the  infringement  of  existing  rights,  where, 
by  reason  of  the  special  circumstances  of  the  case,  the  redress  at  law 
would  be  inadequate."  See  also  Introd.,  p.  12:  Now,  if  equity  "gives 
effectual  redress  for  the  infringement  of  existing  rights"  (and  the  whole 
passage  shows  that  he  is  speaking  of  existing  primary  rights),  it  is  plain 
that  the  "existing  rights"  thus  infringed  upon  and  redressed  must  have 
drawn  their  existence  from  some  source,  either  from  the  law  or  from 
equity.     It  is  absolutely  certain  that  many  of  the  "existing  rights"  which  are 


161  FUNDAMENTAL    PRINCIPLES    AND    DIVISIONS.  §  133 

§  133.  The  general  criterion  which  has  thus  been  pro- 
posed is,  however,  insufficient  and  misleading.  Althoiiiih 
the  inadequacy  of  legal  remedies  explains,  and  is  even 
necessary  to  explain,  the  interposition  of  equity  in  certain 
classes  of  cases,  it  wholly  fails  to  account  in  any  consistent 
and  correct  manner  for  the  entire  equity  jurisdiction.  Tlie 
history  of  the  court  of  chancery  shows  that  all  its  powers 
cannot  be  referred  to  this  source.  It  is  true  that  the 
common-law  modes  of  procedure  are  utterly  inadequate  to 
meet  all  the  ends  of  justice,  and  to  administer  all  the  reme- 
dies which  are  granted  by  equity;  and  that  in  some  general 
sense  equity  is  established  to  supply  this  defect  in  the  law. 
But  the  absence  of  full,  adequate,  and  complete  remedies 
at  law  does  not  constitute  a  basis  upon  which  to  rest  the 
whole  equity  jurisdiction,  nor  furnish  a  practical  explana- 
tion of  all  the  doctrines  and  rules  which  make  up  the  equity 
jurisprudence.     No   theory  is  scientifically  complete,   nor 

thus  redressed  by  equity,  even  if  not  denied  by  the  law,  are  neither  created 
nor  recognized  by  the  law.  Whence,  for  example,  do  the  rights  of  the 
cestui  que  trust  of  land  arise?  Such  rights  "exist,"  and  when  infringed 
upon  they  are  "effectually  redressed"  by  equity.  Rights  cannot  exist 
without  some  creative  source  from  which  they  derived  their  efficacy.  The 
law  certainly  does  not  create,  nor  even  acknowledge,  the  existence  of  any 
rights  belonging  to  the  cestui  que  trust.  The  conclusion  is  inevitable  that 
these  rights  are  created  by  equity.  Even  Mr.  Adams  admits  the  existence 
of  these  primary  rights  independent  of  the  remedies  for  their  violation; 
and  to  deny  that  they  are  created  by  equity  is  to  run  into  a  palpable 
absurdity  for  the  purpose  of  maintaining  an  untenable  theory.  If  it 
should  be  said,  in  opposition  to  this  conclusion,  that  the  only  rights  which 
the  law  does  not  itself  create  nor  recognize  are  the  very  remedial  rights 
themselves  given  by  equity,  the  rights  to  obtain  the  remedies  furnished 
by  the  equity  methods,  the  answer  is  very  simple.  In  the  first  place,  this 
argument  is  a  mere  begging  of  the  question,  a  mere  reasoning  in  a  circle ; 
and  in  the  second  place,  the  statement  is  without  any  foundation  in  fact. 
There  are  large  and  numerous  classes  of  rights,  estates,  and  interests 
maintained  and  enforced  by  equity,  but  not  recognized  by  the  law,  which 
are  in  every  sense  of  the  term  primary, — as  much  so  as  the  legal  estate 
in  fee  in  land;  and  some  of  these  equitable  primary  rights  are,  in  truth. 
not  merely  unrecognized,  but  actually  denied  by  the  law. 
I— 11 


§  134  EQUITY    JURISPRUDENCH.  162 

practically  efficient,  which  does  not  recognize  two  distinct 
sources  and  objects  of  the  equity  jurisdiction,  namely,  the 
primary  rights,  estates,  and  interests  which  equity  juris- 
l^rudence  creates  and  protects,  and  the  remedies  which  it 
confers.  These  two  facts  in  combination  can  alone  define 
the  extent  and  fix  the  limits  of  the  equity  jurisdiction. ^ 

§  134.  Some  writers  have  argued  that  the  equitable 
jurisdiction  is  to  be  regarded  as  wholly  remedial,  and  that 
equity  itself  does  not  create  any  rights  of  property  or  other 
primary  rights,  because  the  court  of  chancery,  as  they  say, 
.only  acts  in  personam  against  the  parties,  and  never  in 
rem  upon  the  subject-matter  of  a  judicial  controversy.  It 
is  said  that  a  decree  of  the  court  never  operates  by  virtue 
of  its  own  inherent  efficacy  to  create  or  to  transfer  an  es- 
tate, right,  or  interest;  that  such  decree  never  executes 
itself,  nor  furnishes  any  means  or  instruments  by  which 
it  may  be  executed  without  the  intervention  and  act  of  the 
party  against  whom  it  is  rendered;  that  the  plaintiff  in 
equity  ne;ver,  merely  by  means  of  the  decree  in  his  favor, 
either  recovers  possession  of  the  land  or  other  subject- 
matter,  or  becomes  vested  with  a  title  to  or  estate  therein ; 
and  that  the  court  simply  orders  some  act  to  be  done,  a 
conveyance  to  be  executed,  an  instrument  to  be  surrendered 
up  and  canceled,  possession  to  be  delivered,  and  the  like, 
and  then  merely  uses  a  moral  coercion  upon  the  defendant, 
by  means  of  fine  and  imprisonment,  to  compel  him  to  do 
what  is  directed  to  be  done  in  the  judgment.  This  radical 
difference  between  the  effect  of  a  decree  in  equity  and  a 
judgment  at  law,  it  is  urged,  shows  that  there  are  no  equi- 
table primary  rights,  no  equitable  estates  or  interests,  dis- 

§  133,  1  The  correctness  of  this  view  of  the  equitable  jurisdiction  and 
of  equity  jurisprudence  is  acknowledged  and  asserted  by  the  most  able 
and  learned  among  modern  text-writers.  Mr.  Spence,  in  particular, 
though  using  a  terminology'  somewhat  different  from  that  which  I  have 
adopted,  makes  this  theory  the  basis  of  his  classification  and  of  his  whole 
treatment  of  equity  jurisprudence. 


163  FUNDAMENTAL    PRINCIPLES    AND    DIVISIONS.  §  135 

tinct  and  separate  from  the  rights  to  obtain  such  remedies 
as  are  administered  by  the  court  of  chancery. 

§  135.  There  may  be  some  plausibility  in  this  argument 
on  its  surface,  but  when  it  is  examined  with  care,  and  under 
the  light  of  history,  all  its  force  disappears.  The  early 
chancellors,  from  prudential  motives  alone,  and  to  avoid  a 
direct  conflict  with  the  common-law  courts,  adopted  this 
method  of  acting,  as  they  said,  upon  the  consciences  of  de- 
fendants; and  the  practice  which  they  invented  has,  with 
the  English  national  devotion  to  established  forms,  con- 
tinued to  modern  times.  But  it  is  certainly  a  complete 
confounding  of  the  essential  fact  with  the  external  form, 
to  say  that  such  a  mere  method  of  procedure,  adopted 
solely  from  considerations  of  policy,  determines  the  nature 
of  the  equitable  jurisdiction,  and  demonstrates  the  non- 
existence of  an}^  equitable  primary  rights,  estates,  and  in- 
terests. If  there  had  been  any  necessary  connection  be- 
tween the  proceedings  and  remedies  of  chancery  and  this 
mode  of  enforcing  its  decrees  in  personam,  if  it  had  been 
intrinsically  impossible  to  render  these  decrees  operative 
in  rem,  then  the  argument  would  have  had  some  weight; 
but  in  fact  there  is  no  such  connection,  no  such  impossi- 
bility; the  decrees  of  a  court  of  equity  may  be  made  to 
operate  in  rem  to  the  same  extent  and  in  the  same  manner 
as  judgments  at  law.^  Furthermore,  whatever  of  plausi- 
bility there  might  be  in  the  theory  as  applied  to  the  English 
court  of  chancery  has  been  entirely  destroyed  by  the  legis- 
lation of  this  country.  The  statutes  of  the  several  states 
have  virtually  abolished  the  ancient  doctrine  that  the  de- 
crees in  equity  can  only  act  upon  the  person  of  a  party, 
and  have  generally  provided  that  in  all  cases  where  the 
ends  of  justice  require  such  an  effect,  and  where  it  is  pos- 
sible, a  decree  shall  either  operate  ex  proprio  vigor e  to 
create,  transfer,  or  vest  the  intended  right,  title,  estate, 

§135,  (a)  The  text  is  quoted  in  (N.  S.)  625,  68  S.  E.  387  (jurisdic- 
Tounant's  Heirs  v.  Fretts,  67  W.  Va.  tion  to  pronounce  a  decree  in  rem  is 
569,  140  Am.  St.  Rep.  979,  29  L.  R.  A.       not    dependent   on   statute). 


§  135  EQUITY   JURISPRUDENCE.  164 

or  interest,  or  else  that  the  acts  required  to  be  done  in 
order  to  accomplish  the  object  of  the  decree  shall  be  per- 
formed by  an  officer  of  the  court  acting-  for  and  in  the  name 
of  tEe  party  against  whom  the  adjudication  is  made.  In 
the  vast  variety  of  equitable  remedies,  there  are,  of  course, 
some  which  directly  affect  the  person  of  the  defendant, 
and  require  some  personal  act  or  omission  on  his  part,  and 
these  are  still  enforced,  and  can  only  be  enforced,  in  per- 
sonam. In  regard  to  all  other  classes,  the  statutes  of  our 
states  have,  as  a  general  rule,  either  made  them  operative 
per  se  as  a  source  of  title,  or  as  conferring  an  estate  or 
right,  or  have  given  the  requisite  power  to  certain  officers 
to  carry  them  into  effect. ^  This  modern  legislation  has 
not,  however,  deprived  a  court  of  equity  of  its  power  to  act 
in  personam  in  cases  where  such  an  effect  is  necessary  to 
maintain  its  settled  jurisdiction;  as,  for  example,  where 
the  parties  being  within  its  jurisdiction,  the  subject-matter 
of  the  controversy,  whether  real  or  personal  property,  is 
situated  within  the  territory  of  another  state  or  nation. ^  ^ 

§  135,  1  For  example,  wherever  a  decree  orders  a  conveyance  to  be  made 
by  the  defendant,  the  statutes  of  many  states  provide  that  the  deed  may 
be  executed  by  a  commissioner  or  other  ofl&cer  of  the  court,  with  the 
same  effect  as  though  done  by  the  defendant  himself;  others  declare  that 
decrees  may  vest  a  title  in  the  party  in  whose  favor  they  are  rendered. 
All  decrees  which  require  the  sale  of  property  real  or  personal,  or  the 
distribution  of  moneys,  are  executed  by  an  officer  of  the  court,  and  his 
deed  upon  the  sale  conveys  all  the  estate  and  title  of  the  defendant.  Pre- 
ventive decrees,  like  ordinary  injunctions,  and  some  kinds  of  restorative 
decrees,  as  mandatory  injunctions,  must  still  operate  in  personam^  and 
be  enforced  by  attachment  process  against  the  defendant,  with  fine  and 
imprisonment  in  case  of  disobedience. 

§  135,  2  See  Topp  v.  White,  12  Heisk.  165 ;  Moore  v.  Jaeger,  2  Mc Ar. 
465;  Penn  v.  Lord  Baltimore,  1  Ves.  Sen.  444,  2  Lead.  Cas.  Eq.,  and  notes 
thereto;  Caldwell  v.  Carrington,  9  Pet.  86;  Watkins  v.  Holman,  16  Pet. 
25;  Mead  v.  Merritt,  2  Paige,  402;  Hawley  v.  James,  7  Paige,  213,  32 
Am.  Dec.  623;  Sutphen  v.  Fowler,  9  Paige,  280;  Newton  v,  Bronson,  13 

§  135,  (b)  The  text  is  cited  in  ber  Ashpalt  Paving  Co.,  151  Wis.  48, 
Bethell  v.  Bethell,  92  Ind.  318  (suit  Ann.  Cas.  1914B,  53,  138  N.  W.  94. 
to  reform  a  deed);  McMillan  v.  Bar- 


1G5  FUNDAMENTAL   PRINCIPLES    AND    DIVISIONS.  §  136 

§  136.  Divisions. — Adopting,  therefore,  the  primary 
rights,  estates,  and  interests  which  equity  creates,  and  the 
remedies  which  it  confers,  as  the  objects  which  define  and 
limit  the  extent  of  the  equity  jurisdiction,  I  shall  state 
the  principles  by  which  the  extent  and  limits  of  that  juris- 
diction are  ascertained.  It  has  been  customary  among 
writers  to  distinguish  the  equitable  jurisdiction  as  exclu- 
sive and  concurrent,  and  some  have  added  the  third  sub- 
division, auxiliary.  I  have  already  given  reasons  which 
appear  to  be  sufficient  for  not  following  this  method  of 
division  in  treating  of  the  matters  which  constitute  the 
body  of  equity  jurisprudence;  but  I  shall  adopt  it  as  the 
most  convenient  in  discussing  the  jurisdiction.  This  dis- 
tinction or  opposition  between  the  "exclusive"  and  the 
"concurrent"  relates  wholly  to  the  nature  and  form  of 
the  remedies  which  are  administered  by  equity  courts,  and 
properly  belongs,  therefore,  to  that  part  of  the  jurisdiction 
alone  which  is  based  upon  these  remedies.  As  has  already 
been  stated,  the  equity  jurisdiction  embraces  both  eases 
for  the  maintenance  or  protection  of  primary  rights,  es- 
tates, and  interests  purely  equitable,  and  cases  for  the 
maintenance  or  protection  of  primary  rights,  estates,  and 
interests  purely  legal;  and  in  the  latter  class  of  cases  the 
remedies  granted  may  be  of  a  kind  which  are  peculiar  to 
equity  courts,  such  as  reformation,  cancellation,  injunc- 
tion, and  others,  or  may  be  of  a  kind  which  are  adminis- 
tered by  courts  of  law,  as  the  recovery  of  money,  or  of  the 
possession  of  specific  things. ^  It  is  evident  that  the  dis- 
tinction between  the  exclusive  and  the  concurrent  jurisdic- 
tion represents  the  fact  that  the  two  kinds  of  remedies, 
equitable  and  legal,  may,  under  proper  circumstances,  be 

N.  Y.  587,  67  Am.  Dec.  89;  Bailey  v.  Ryder,  10  N.  Y.  363;  Gardner  v. 
Ogden,  22  N.  Y.  332-339,  78  Am.  Dec.  192;  Pingree  v.  Coffin,  12  Gray, 
304;  Davis  v.  Parker,  14  Allen,  94;  Brown  v.  Desmond,  100  Mass.  267. 

§136,  (a)  This  passage  of  the  Trust  Co.  v.  Cahn,  102  Md.  530,  62 
text   is   quoted    in    Safe    Deposit    &       Atl.  819. 


§  137  EQUITY    JURISPRUDENCE.  1C6 

obtained  in  the  last-mentioned  class  of  cases ;  no  sncli  divi- 
sion could  have  existed  if  the  equity  jurisdiction  had  been 
confined  to  the  first  class. 

§  137.  Exclusive  Jurisdiction. — With  these  preliminary 
explanations  we  are  prepared  for  a  description,  in  general 
terms,  of  the  various  kinds  and  classes  of  cases  which  come 
within  the  equitable  jurisdiction  of  courts.  The  exclusive 
jurisdiction  extends  to  and  embraces,  first,  all  civil  cases  in 
which  the  primary  right  violated  or  to  be  declared,  main- 
tained, or  enforced — whether  such  right  be  an  estate,  title, 
or  interest  in  property,  or  a  lien  on  property,  or  a  thing  in 
action  arising  out  of  contract — is  purely  equitable,  and 
not  legal,  a  right,  estate,  title,  or  interest  created  by  equity, 
and  not  by  law.i  ^  All  cases  of  this  kind  fall  under  the 
equitable  jurisdiction  alone,  because  of  the  nature  of  the 
primary  or  substantive  right  to  be  redressed,  maintained, 
or  enforced,  and  not  because  of  the  nature  of  the  remedies 
to  be  granted;  although  in  most  of  such  instances  the 
remedy  is  also  equitable.  It  is  a  proposition  of  universal 
application  that  courts  of  law  never  take  cognizance  of 
cases  in  which  the  primary  right,  estate,  or  interest  to  be 
maintained,  or  the  violation  of  which  is  sought  to  be  re- 
dressed, is  purely  equitable,  unless  such  power  has  been  ex- 
pressly conferred  by  statute;  and  if  the  statutes  have  inter- 
fered and  made  the  right  or  the  violation  of  it  cognizable 
by  courts  of  law,  such  right  thereby  becomes  to  that  extent 
legal. 2     One  example  will  sufficiently  illustrate  this  propo- 

§  137,  1  See  1   Spence's  Eq.   Jur.,  pp.   430^34. 

§  137,  2  For  example,  by  a  peculiar  rule  in  Georgia,  a  person  who 
has  a  high  equitable  estate  in  land,  called  a  "complete  equity,"  may  main- 
tain the  legal  action  of  ejectment  on  it  to  recover  possession  of  the  land : 
Goodson  V.  Beacham,  24  Ga.  153;  Jordan  v.  Faircloth,  27  Ga.  372,  376. 
A  vendee  in  a  contract  for  the  sale  of  land  who  had  paid  the  agreed 
price,  and  was  entitled  to  a  deed  and  to  the  possession,  and  who  simply 
needed  the  legal  title  to  complete  his  ownership,  would  have  the  "complete 
equity"  intended  by  this  rule.     In  my  own  opinion,  the  same  result  should 

§137,-  (a)  This   paragraph    of   the   text   is    quoted   in   Brissell   v.    Knapp 
(C.  C.  Nev.),  155  Fed.  809   (trusts). 


167  FUNDAMENTAL    PRINCIPLES    AND    DIVISIONS.  §  137 

sition.  At  the  common  law  (in  its  earliest  stages),  an 
assignment  of  a  thing  in  action  conveyed  no  right  or  inter- 
est whatever  to  the  assignee  which  would  be  recognized  to 
any  extent  or  for  any  purpose  by  a  court  of  law.  In  pro- 
cess of  time,  however,  an  interest  in  the  assignee  came  tO 
be  acknowledged,  and  to  be  in  some  measure  protected; 
but  he  was  never  regarded  as  obtaining  a  full  legal  right 
or  title,  so  that  he  could  maintain  an  action  in  his  own  name 
as  assignee  of  the  thing  in  action. ^  Equity,  however, 
treated  the  assignee  as  succeeding  to  all  the  right  and  litle 
of  the  assignor,  as  possessing  a  full  interest  in,  or,  so  to 
speak,  ownership  of,  the  thing  in  action  transferred,  and 
therefore  permitted  him  to  maintain  the  proper  suit  in 
his  own  name.  It  is  an  entirely  mistaken  view  to  say  that 
equity  only  gave  a  remedy  in  this  case,  for  there  could  be 
no  remedy  without  an  antecedent  right.  The  assignee  ac- 
quired a  substantive  right,  an  absolute  interest;  but  it  was 
equitable,  and  could  therefore  only  be  enforced  by  a  suit 
in  equity ;  while  a  court  of  law  would  only  permit  an  action 
to  be  prosecuted  in  the  name  of  the  assignor,  in  whom  it 
said  the  title  was  still  vested.'*  ^  The  statutes  of  many 
states  have  abolished  this  common-law  xule,  and  enabled 
the  assignee  to  sue  in  his  own  name  in  a  court  of  law.  The 
necessary  effect  of  this  legislation  is  to  change  the  right 

follow  in  all  the  states  which  have  adopted  the  reformed  procedure  abol- 
ishing all  distinctions  between  legal  and  equitable  actions;  but  the  de- 
cisions are  nearly  all  opposed  to  this  view.  See  the  question  stated  and 
discussed  in  Pomeroy  on  Remedies  and  Remedial  Rights,  §§  98-!!  03. 

§  137,  3  2  Black.  Com.  442 ;  1  Spenee's  Eq.  Jur.,  p.  181 ;  Lampet's 
Case,  10  Coke,  47,  48:  Winch  v.  Keeley,  1  Term  Rep.  619;  Master  v. 
Miller,  4  Term  Rep.  340;  Westoby  v.  Day,  2  El.  &  B.  605,  624;  Raymond 
v.  Squire,  11  Johns.  47 ;  Briggs  v.  Dorr,  19  Johns.  95 ;  Conover  v.  Cutting, 
50  N.  H.  47. 

§  137,  4  1  Spenee's  Eq.  Jur.,  p.  643;  Row  v.  Dawson,  1  Ves.  Sen.  331, 
2  Lead.  Eq.  1531,  1559,  and  notes  thereto. 

§  137,  (b)  The  text  is  cited  in  Cloae  v.  Independent  Gravel  Co.  156  Mo. 
App.  411,  138  S.  W.  81. 


§  138  EQUITY    JURISPRUDENCE.  168 

acquired  by  the  assignee  of  a  thing  in  action,  from  being 
purely  equitable,  into  a  legal  title,  interest,  or  ownership.^  ° 

§  138.  The  exclusive  jurisdiction  includes,  secondly,  all 
civil  cases  in  which  the  remedy  to  be  granted — and,  of 
course,  the  remedial  right — is  purely  equitable,  or  one 
which  is  recognized  and  administered  by  courts  of  equity, 
and  not  by  courts  of  law.  In  the  cases'  of  this  class,  the 
primary  right  which  is  maintained,  redressed,  or  enforced 
is  sometimes  equitable  and  is  sometimes  legal ;  but  the  juris- 
diction depends,  not  upon  the  nature  of  these  rights,  estates, 
or  interests,  but  wholly  upon  the  nature  of  the  remedies.^ 
Cases  in  which  the  remedy  sought  and  obtained  is  one  which 
equity  courts  alone  are  able  to  confer  must,  upon  any  con- 
sistent system  of  classification,  belong  to  the  exclusive  juris- 
diction of  equity,^  even  though  the  primary  right,  estate, 
or  interest  of  the  party  is  one  which  courts  of  law  recognize, 
and  for  the  violation  of  which  they  give  some  remedy. 
Thus  a  suit  to  compel  the  specific  performance  of  a  contract 
falls  under  the  exclusive  jurisdiction  of  equity,  although  a 
legal  right  also  arises  from  the  contract,  and  courts  of  law 

§  137,  5  See,  as  to  these  state  statutes  and  their  effect,  Poraeroj'  on 
Remedies  and  Remedial  Rights,  chap.  2,  sec.  2,  §  §  124-138 ;  Petersen  v. 
Chemical  Bank,  32  N.  Y.  21,  35,  88  Am.  Dec.  298,  per  Denio,  J. :  "The 
law  of  maintenance  prohibited  the  transfer  of  the  legal  property  in  a 
chose  in  action,  so  as  to  give  the  assignee  a  right  of  action  in  his  own 
name.  But  this  is  now  abrogated,  and  such  a  demand  as  that  asserted 
against  the  defendant  in  this  suit  [an  ordinary  debt]  may  be  sold  and 
conveyed,  so  as  to  vest  in  the  purchaser  all  the  legal  as  well  as  the  equi- 
table rights  of  the  original  creditor."  See  also  Cummings  v.  Morris, 
25  N.  Y.  625,  627,  per  Allen,  J.  Some  dicta  of  judges  to  the  contrary, 
to  be  found  in  a  few  cases,  must  be  regarded  as  mistaken ;  as,  for  example, 
McDonald  v.  Kneeland,  5  Minn.  352,  365,  per  Atwater,  J. 

§  137,   (c)   This    paragraph    of   the  1005,  an  action  to  quiet  title.     The 

text  is  cited  in  Deering  v.  Schreyer,  text   is    cited    in    Curtice   v.    Dixon, 

171  N.  Y.  451,  64  N.  E.  179.  73   N.   H.   393,  62  Atl.  492. 

§  138,    (a)    The   text  is   quoted   in  §  138,   (b)   The   text   is   quoted   in 

Montana  Ore  Purchasing  Co.  v.  Bos-  Mclsaac  v.  McMurray,  77  N.  H.  466, 

ton  &  M.  Consol.  C.   &  S.  Min.  Co.,  L.  R.  A.  1916B,  769,  93  Atl.  115. 
27  Mont.  536,  70  Pac.  1114,  71  Pac. 


169  FUNDAMENTAL   PRINCIPLES    AND    DIVISIONS.  §  138 

will  give  the  remedy  of  damages  for  its  violation.  The 
remedies  peculiar  to  equity  are  not  confined  to  cases  in 
which  the  primary  right  of  the  complaining  party,  what- 
ever be  its  kind,  is  equitable;  they  are  given  in  numerous 
classes  of  instances  where  such  right,  estate,  or  interest 
is  wholly  legal.  Thus  a  legal  estate  in  land  may  be  pro- 
tected by  the  exclusively  equitable  remedy  of  injunction 
against  nuisances  or  continued  trespasses;  or  the  legal 
estate  may  be  established  against  adverse  claimants  by  a 
suit  to  quiet  title,  or  by  the  remedy  of  cancellation  to  re- 
move a  cloud  from  title.  Again,  the  particular  fact  or  event 
which  occasions  the  peculiar  equitable  remedy,  and  gives 
rise  to  the  right  to  such  remedy,  may  also  be  the  occasion 
of  a  legal  remedy  and  a  legal  remedial  right  simultaneous 
with  the  equitable  one.  This  is  especially  true  with  ref- 
erence to  fraud,  mistake,  and  accident.  Fraud,  for  ex- 
ample, may  at  the  same  time  be  the  occasion  of  the  legal 
remedy  of  damages  and  of  the  equitable  relief  of  cancella- 
tion. These  two  classes  of  cases  cannot,  however,  be  re- 
garded or  treated  as  belonging  to  the  concurrent  jurisdic- 
tion ;  such  a  mode  of  classification  could  only  be  productive 
of  confusion.  The  criterion  which  I  have  given  is  always 
simple  and  certain  in  referring  to  the  exclusive  jurisdiction 
all  cases  in  which  the  remedy  is  given  by  courts  of  equity 
alone,  without  regard  to  the  nature  of  the  substantive  right 
which  forms  the  basis  of  the  action,  or  to  the  fact  or  event 
which  is  the  occasion  of  the  required  relief.  In  this  manner 
only  is  the  notion  of  jurisdiction  preserved  distinct  from 
all  questions  as  to  the  propriety  of  exercising  that  jurisdic- 
tion and  of  granting  relief  by  equity  courts  in  particular 
cases.  It  is  proper  to  remark  here  that  the  statutoiy  legis- 
lation of  many  states  has  increased  the  number  of  cases  in 
which  purely  equitable  remedies  are  granted  for  the  pur- 
pose of  maintaining,  enforcing,  or  defending  primary 
rights,  estates,  and  interests  which  are  legal  in  their  nature, 
and  has  thus  enlarged  this  department  of  the  original  ex- 
clusive  jurisdiction    of    equity.     As    examples    merely,    I 


^  139  EQUITY    JURISPRUDENCE.  170 

mention  the  statutory  suit  to  quiet  title  and  determine  the 
legal  estate  by  the  holder  of  the  fee  in  possession  or  not  in 
jDossession,  against  an  adverse  claimant  or  claimants  rely- 
ing perhaps  upon  another  legal  title ;  ^  the  suit  by  heirs  to 
set  aside  an  alleged  will  of  lands;  the  ordinary  equitable 
suit  in  many  stated  to  enforce  a  mechanic's  lien  and  other 
similar  liens ;  and  the  suits  given  by  statute  in  most  states 
to  dissolve  corporations  or  to  remove  their  officers,  and  the 
like. 

§  139.  Concurrent  Jurisdiction. — The  concurrent  juris- 
diction embraces  all  those  civil  eases  in  which  the  primary 
right,  estate,  or  interest  of  the  complaining  party  sought 
to  be  maintained,  enforced,  or  redressed  is  one  which  is 
cognizable  by  the  law,  and  in  which  the  remedy  conferred 
is  of  the  same  kind  as  that  administered,  under  the  like  cir- 
cumstances, by  the  courts  of  law, — being  ordinarily  a  re- 
covery of  money  in  some  form.^  The  primary  right,  the 
estate,  title,  or  interest,  which  is  the  foundation  of  the  suit, 
must  be  legal,  or  else  the  case  would  belong  to  the  exclusive 
jurisdiction  of  equitj^ ;  and  the  law  must,  through  its  judicial 
procedure,  give  some  remedy  of  the  same  general  nature 
as  that  given  by  equity,  but  this  legal  remedy  is  not,  under 
the  circumstances,  full,  adequate,  and  complete.  The  fact 
that  the  legal  remedy  is  not  full,  adequate,  and  complete  is, 
therefore,  the  real  foundation  of  this  concurrent  branch  of 
the  equity  jurisdiction.^  a     Ti^is  principle  is  well  illustrated 

§  139,  1  See  1  Spence's  Eq.  Jur.,  pp.  430-i34. 

§  139,  2  There  is  a  distinction  here  of  gTeat  importance,  but  which  has 
often  been  overlooked.  The  want  of  a  full,  adequate,  and  complete 
remedy  at  law,  under  the  circumstances  of  the  particular  case,  is  also 

§138,   (c)   The  text  is  quoted  and  editor's   note;    and   Pomeroy's  Equi- 

cited  in  Montana  Ore  Purchasing  Co.  table    Remedies,    chapter    "Quieting 

V.  Boston  &  M.   Consol.  C.  &  S.  Min.  Title." 

Co.,  27  Mont.  536,  70  Pac.  1114,  71  §  139,  (a)  The  text  is  cited  in 
Pac.  1005,  discussing  the  equitable  Henderson  v.  Johns,  13  Colo.  280, 
jurisdiction  in  such  suits  as  depend-  22  Pac.  461  (suit  to  compel  sur- 
ent  on  the  plaintiff's  possession.  render  of  notes);  in  Gill  v.  Ely- 
See,    on    this    subject,    post,    §  292,  Norris  Safe  Co.,  170  Mo.  App.  478, 


171  FUNDAMENTAL   PRINCIPLES   AND    DIVISIONS.  §  139 

by  the  case  of  contribution  among  sureties.  The  surety 
entitled  to  reimbursement  may  maintain  an  action  at  law, 
and  recover  a  pecuniary  judgment  against  each  of  the  per- 
sons liable  to  contribution,  but  this  legal  relief  is  subject 
to  so  many  limitations  that  it  may  often  fail  to  restore  the 
plaintiff  to  his  rightful  position.  The  equity  suit  for  a  con- 
tribution gives  exactly  the  same  final  remedy, — a  recovery 
of  money ;  but  on  account  of  the  greater  freedom  and  adapt- 
ability to  circumstances  incident  to  the  equitable  procedure, 
it  enables  the  plaintiff  in  one  proceeding  to  obtain  such 

the  reason  why  the  jurisdiction  of  equity  is  actually  exercised,  and  a  de- 
cision is  made  in  favor  of  the  plaintiff  granting  him  equitable  relief,  in 
some  instances  of  the  exclusive  jurisdiction;  as,  for  examj^le,  in  suits  for 
the  specific  performance  of  contracts.  But  such  fact  is  not  in  these 
instances  the  foundation  of  the  jurisdiction;  it  is  only  the  occasion  on 
which  a  decision  is  rightfully  made  in  pursuance  of  the  doctrines  of  equity 
jurisprudence  by  courts  already  possessing  the  jurisdiction.  The  juris- 
diction exists  because  courts  of  equity  alone  are  competent  to  administer 
these  remedies.  In  all  instances  of  concurrent  jurisdiction,  both  the 
courts  of  law  and  those  of  equity  are  competent  to  administer  the  same 
remedy,  and  the  foundation  of  the  jurisdiction  in  equity  is  the  inadequacy 
of  the  relief  as  it  is  administered  through  means  of  the  legal  procedure. 
The  exclusive  jurisdiction  of  equity  rests  upon  an  entirely  different  founda- 
tion, and  exists  absolutely  without  reference  to  the  adequacy  of  legal 
reliefs.  This  distinction  is  a  plain  one,  but  is  often  lost  sight  of;  the 
two  classes  of  cases  are  often  confounded,  and  the  equitable  jurisdiction, 
in  all  instances  exclusive  and  concurrent,  is  made  to  rest  merely  upon  the 
inadequacy  of  legal  remedies.  This  error  grows  out  of  the  tendency  to 
confound  questions  as  to  the  equitable  jurisdiction;  i.  e.,  the  power  of 
equity  courts  to  hear  and  decide,  with  the  altogether  different  questions 
as  to  the  rightfulness  of  their  decision;  i.  e.,  whether,  according  to  the 
doctrines  of  equity,  a  case  unquestionably  within  their  jurisdiction  was 
properly  decided. 

156   S.  W.   811    (court  has   at  least  in  Myers  t.  Sierra  Valley  Stock  & 

concurrent     jurisdiction,     as     relief  Agric.   Assn.,   122   Cal.   669,  .55   Pac. 

prayed    was    to    have    bill    of    sale  689  (remedy  to  enforce  contribution 

declared    a    mortgage    and    canceled  among  stockholders  is  at  law) ;  Buck 

for  fraud;  and  hence  may  administer  v.   Ward,   97   Va.   209,   33   S.  E.   513 

complete  relief);  in  State  v.  Chicago  (suit  to  recover  money  expended  by 

&  N.  W.  Ey.  Co.,  132  Wis.  345,  112  reason  of  defendant's  fraud). 
N.  W.  515  (accounting);  and  quoted 


§  140  EQUITY   JURISPRUDENCE.  172 

complete  reimbursement  as  relieves  him  effectually  from 
all  the  burden  which  does  not  properly  rest  upon  him,  and 
produces  a  just  equality  of  recompense  as  well  as  of  loss 
among  all  the  parties. ^  The  incidents  and  features  of  legal 
remedies  which  render  them  inadequate  are  various  in 
their  kind  and  extent,  and  will  be  described  in  a  subsequent 
section.  One  of  the  most  common  and  important  of  these 
features  which  is  frequently  the  ground  for  the  equitable 
jurisdiction  is  the  necessity  of  obtaining  whatever  remedies 
the  law  furnishes,  by  means  of  several  separate  actions, 
either  simultaneous  against  different  persons,  or  succes- 
sive against  the  same  person;  while  in  equity  the  plaintiff 
may  obtain  full  relief  by  one  suit  brought  against  all  the 
parties  liable  or  interested.  This  power,  which  the  equity 
courts  possess,  of  deciding  the  whole  matter  in  one  judicial 
proceeding,  and  of  thus  avoiding  a  repetition  or  circuity  of 
legal  actions,  is  a  fruitful  source  of  the  concurrent  equitable 
jurisdiction.'*  ^ 

§  140.  The  cases  included  within  the  concurrent  juris- 
diction may,  for  purposes  of  convenience  and  clearness  in 
their  discussion,  be  arranged  under  two  general  classes. 
The  first  contains  all  those  cases,  belonging  to  the  concur- 
rent jurisdiction,  in  which  the  primary  right  violated,  the 
estate,  title,  or  interest  to  be  protected,  is,  of  course,  legal, 
and  the  subject-matter  of  the  suit,  and  the  act,  event,  or 
fact  which  occasions  the  right  to  a  remedy,  may  be  brought 
within  the  cognizance  of  the  law  courts,  and  made  the  foun- 
dation of  a  legal  action,  but  in  respect  of  which  the  whole 

§  139,  3  Bering  v.  Earl  of  Winchelsea,  1  Cox,  218,  1  Lead.  Cas.  Eq. 
120,  and  notes. 

§  139,  4  New  York,  etc.,  R.  R.  v.  Schuyler,  17  N.  Y.  592;  McHenry  v. 
Hazard,  45  N.  Y.  580;  Third  Ave.  R.  R.  v.  Mayor,  etc.,  54  N.  Y.  159; 
Eldridge  v.  Hill,  2  Johns.  Ch.  281;  West  v.  Mayor,  etc.,  10  Paige,  539; 
Oelrichs  v.  Spain,  15  Wall.  211,  228;  Woods  v.  Monroe,  17  Mich.  238; 
Earl  of  Oxford's  Case,  2  Lead.  Cas.  Eq.  1337,  note. 

§139,  (b)  The  text  is  cited  in  McMullin's  Admr.  v.  Sandars,  79  Va. 
356.     See  post,  §§243-275. 


173  FUNDAMENTAL   PRINCIPLES   AND    DIVISIONS.  §  141 

system  of  legal  remedies  is  so  partial  and  insufficient  that 
complete  justice  can  only  be  done  by  means  of  the  equity 
jurisdiction.  The  most  important  acts,  events,  and  facts 
which  thus  require  or  permit  the  interposition  of  equity  in 
the  cases  forming  this  branch  of  the  concurrent  jurisdiction 
are  fraud,  mistake,  and  accident. ^  ^  The  second  class  con- 
tains all  the  remaining  cases  in  which  the  primary  right  to 
be  redressed  or  protected  is  legal,  and  the  relief  is  of  the 
same  kind  as  that  given  by  the  law,  but  in  which,  from  the 
special  circumstances  of  the  case  itself,  or  from  the  inherent 
defects  of  the  legal  procedure,  the  remedy  at  law  is  inade- 
quate, and  equity  takes  jurisdiction,  in  order  to  do  complete 
justice.  Among  the  familiar  examples  of  this  class  are 
suits  for  an  accounting,^  for  contribution,  for  exoneration, 
in  all  of  which  the  remedy,  both  at  law  and  in  equity,  is  a 
recovery  of  money ;  suits  for  partition  of  land,<^  admeasure- 
ment of  dower,  and  settlement  of  boundaries,  in  all  of  which 
the  final  relief,  both  at  law  and  in  equity,  is  the  obtaining 
possession  of  specific  tracts  of  land;  and  suits  which  result 
in  an  award  of  damages. 

§  141.  It  should  be  remarked,  however,  that  the  fore- 
going divisions  of  the  jurisdiction  cannot  always  be  strictly 
observed  in  the  actual  practice,  since  one  suit  may  often 

§  140,  1  All  cases  of  equitable  cognizance  arising  from  fraud,  accident, 
or  mistake  do  not  belong  to  the  concurrent  jurisdiction  merely  because 
the  law  has  jurisdiction  of  cases  arising  from  the  same  facts.  Suits 
occasioned  by  fraud,  in  which  the  remedy  granted  is  cancellation,  and 
those  occasioned  by  mistake,  in  which  the  remedy  is  a  reformation,  and 
the  like,  fall  within  the  exclusive  jurisdiction.  The  concun-ent  jurisdic- 
tion, however,  embraces  a  large  variety  of  cases  in  which  the  cause  of 
action  springs  from,  or  is  occasioned  by,  fraud  or  mistake. 

§  140,  (a)  This  paragraph   of  the  141  N.  Y.  437,  38  Am.  St.  Eep.  807; 

text  is  cited  in  Stockton  v.  Ander-  and  in  State  v.  Chicago  &  N.  W.  By. 

son,   40   N.   J.   Eq.   486,   4   Atl.   642.  Co.,  132  Wis.  345,  112  N.  W.  515. 

The  author's  note  is  cited  in  Curtice  §  140,  (c)  This   paragraph   of  the 

V.  Dixon,  73  N.  H.  393,  62  Atl.  492.  text  is  cited  in  Daniels  v.  Benedict, 

§140,   (b)   This   paragraph   of   the  50  Fed.  347. 
text  is   cited  in  Eussell  v.  McCall, 


§§142,143  EQUITY    JURISPRUDENCE.  174 

include  different  kinds  of  the  same  jurisdiction,  and  may 
even  embrace  both  the  exclusive  and  the  concurrent  juris- 
dictions. For  example,  both  the  equitable  estate  of  the 
cestui  que  trust  and  the  legal  estate  of  the  trustee  may  be 
protected  by  means  of  one  action  based  upon  the  exclusive 
jurisdiction,  and  many  remedies  belonging  to  the  exclusive 
jurisdiction  are  combined  in  the  same  suit  with  a  pecuniary 
recovery.  The  explanation  is  to  be  found  in  the  general 
principle  of  the  equity  procedure,  which  requires  all  the 
parties  interested  in  the  subject  of  an  action  to  be  brought 
before  the  court,  and  the  whole  controversy  to  be  settled 
by  one  adjudication. 

§  142.  Auxiliary  Jurisdiction. — The  auxiliary  jurisdic- 
tion, in  its  original  and  true  scope  and  meaning,  is  in  fact 
a  special  case  of  the  ''exclusive,"  since  its  methods  and 
objects  are  confined  to  the  equity  procedure.  In  all  suits 
which  belong  to  this  jurisdiction  in  its  original  and  proper 
sense,  no  remedy  is  either  asked  or  granted;  their  sole 
object  is  the  obtaining  or  preserving  of  evidence  to  be 
used  u*pon  the  trial  of  some  action  at  law.  The  cases  em- 
braced within  this  proper  auxiliary  jurisdiction  are  suits 
for  discovery,  to  obtain  an  answer  under  oath  from  a  party 
to  a  pending  or  anticipated  action  at  law,  which  answer  may 
be  used  as  evidence  on  the  trial  of  such  action;  suits  for  the 
perpetuation  of  evidence;  and  suits  for  the  obtaining  of 
evidence  in  a  foreign  country.  The  latter  two  species  of 
suits  are  practically  obsolete  in  this  country,  having  been 
superseded  by  more  summary  and  efficient  proceedings  au- 
thorized by  statutes.* 

§  143.  Although  the  auxiliary  jurisdiction  for  a  discov- 
ery was  originally  exercised  for  the  sole  purpose  above 
mentioned,  to  obtain  evidence  from  a  party  litigant  to  be 
offered  on  the  trial  of  a  legal  action,  so  that  as  soon  as  its 

§142,  (a)  This  paragraph  of  the  156  Fed.  500;  Turnbull  v.  Crick,  63 
text  is  cited  in  Balfour  v.  San  Minn.  91,  65  N.  W.  135;  Chapman  v. 
Joaquin   Valley   Bank    (C.    C.    Cal.),       Lee,  45  Ohio  St.  356,  13  N.  E.  736. 


175  FUNDAMENTAL   PRINCIPLES   AND    DIVISIONS.  §  144 

purpose  was  accomplished  by  the  filing  of  a  proper  answer 
the  suit  itself  was  ended,  and  no  decree  was  possible,  yet 
in  some  of  the  American  states  such  a  discovery  in  relation 
to  matters  in  controversy  purely  legal  has  been  made  the 
ground  of  enlarging  the  concurrent  jurisdiction  of  equity, 
by  extending  it  to  the  very  issues  themselves  in  respect  of 
which  the  discovery  is  obtained.  In  other  words,  where  the 
court  of  equity  has  exercised  its  auxiliary  jurisdiction  to 
obtain  discovery  concerning  any  matter  in  controversy, 
even  though  purely  legal,  it  thereby  acquires  complete  juris- 
diction over  the  controversy  itself,  and  may  go  on  and 
decide  the  issues  and  grant  the  proper  relief,  although  the 
case  is  one  cognizable  at  law,  and  the  legal  remedy  is  fuUp 
adequate.  Mere  discovery  is  thus  made  the  foundation  of 
a  concurrent  jurisdiction  over  cases  which  are  purely  legal, 
both  in  the  primary  rights  involved  and  in  the  remedy, 
without  any  regard  to  the  adequacy  or  inadequacy  of  this 
legal  remedy.  This  doctrine  prevails,  or  has  prevailed,  in 
certain  of  the  states,  but  it  is  clearly  opposed  to  the  true 
theory  of  the  equitable  jurisdiction.  ^  It  should  be  re- 
marked that  in  many  of  the  states  the  whole  auxiliary  juris- 
diction for  discovery  has  become  useless  and  obsolete, 
through  great  changes  made  in  the  general  law  of  evidence, 
or  has  been  expressly  abolished  by  statute. ^  a 

§144.  The  suit  for  a  ''discovery"  belonging  to  the 
auxiliary  jurisdiction,  as  described  in  the  foregoing  para- 
graphs, should  be  carefully  distinguished  from  the  so-called 
"discovery"  which  may  be,  and  ordinarily  is,  an  incident 
of  every  equitable  action.  It  is  a  part  of  the  ordinary 
equity  procedure,  that  whatever  be  the  relief  sought,  and 
whether  the  jurisdiction  be  exclusive  or  concurrent,  the 
plaintiff  may,  by  means  of  allegations  and  interrogatories 


§  143,  1  See  post,  chap,  ii,  §§  250  et  seq. 
§  143,  2  See  post,  section  iv. 


§  143,   (a)  The   text   is   cited   to    this   effect   in   Becker   v.   Frederick   W. 
Lipps  Co.  (Md.),  101  Atl.  783. 


§  145  EQUITY    JURISPRUDENCE.  176 

contained  in  his  pleading,  compel  the  defendant  to  disclose 
by  his  answer  facts  within  his  own  personal  knowledge 
which  may  operate  as  evidence  to  sustain  the  plaintiff's 
contention.  The  name  ''discovery."  is  also  given  to  this 
process  of  probing  the  defendant's  conscience,  and  of  ob- 
taining admissions  from  him,  which  accompanies  almost 
every  suit  in  equity;  but  it  should  not  be  confounded  with 
''discovery"  in  its  original  and  strict  signification,  nor 
with  that  mentioned  in  the  last  preceding  paragraph,  which 
is  sometimes  made  the  ground  for  extending  the  concurrent 
jurisdiction  of  equity  over  cases  otherwise  belonging  to  the 
domain  of  the  common-law  courts.* 

§  145.  The  foregoing  summary  may  be  appropriately 
concluded  by  a  statement  of  the  order  to  be  pursued  in  the 
further  discussion  of  the  equitable  jurisdiction  thus  briefly 
outlined.  The  whole  subject  will  be  distributed  into  three 
chapters,  which  will  respectively  treat  of, — Chapter  I., 
doctrines  concerning  the  jurisdiction  generally,  its  extent 
when  unaffected  by  statutory  limitations ;  Chapter  II.,  gen- 
eral rules  for  the  government  of  this  jurisdiction;  Chapter 
III.,  particular  jurisdiction  of  the  courts  in  the  various 
states,  and  of  the  United  States  courts.  The  three  remain- 
ing sections  of  the  present  chapter  are  devoted  in  order  to 
a  more  detailed  description  of  the  exclusive,  the  concurrent, 
and  the  auxiliary  jurisdictions. 

§  144,  (a)  Discovery    as    an    ordi-  graph  of  the  text  is  quoted  in  full 

nary     incident     of     an     action     for  in   Balfour   v.    San    Joaquin    Valley 

equitaWe   relief   distinguished   from  Bank  (C.  C.  Cal.),  156  Fed.  500. 
the  suit  for  discovery.     This  para- 


§146. 

§§  147-149. 

§150. 

§§ 151-155. 

§156. 

§§157,158. 

§§  159,  160. 

§161. 

§§162,163. 

§164. 

§§  165-167. 

§§  168,  169. 

§§  170-172. 

177  THE   EXCLUSIVE   JURISDICTION..  §  14G 

SECTION  n. 

THE  EXCLUSIVE  JURISDICTION. 

ANALYSIS. 

Equitable  primary  rights  and  "equities"  defined. 

Equitable  estates  described. 

Certain    distinctive    equitable    doctrines   forming   part   of   equity 

jurisprudence. 
Trusts  described. 
Executors  and  administrators. 
Fiduciary  relations. 
Married  women's  separate  property. 
Estates  arising  from  equitable  converoioa. 
Mortgages  of  land. 
Mortgages  of  personal  property. 
Equitable  liens. 
Estates  arising  from  assignment  of  things  in  action,  possibilities, 

etc.,  and  from  an  equitable  assignment  of  a  fund. 
Exclusive  equitable  remedies  described. 

§  146.  Equitable  Estates,  Interests,  and  Rights  in  Prop- 
erty.— It  was  stated  in  the  preceding  section  that  the  exclu- 
sive jurisdiction  included,  first,  all  civil  cases  based  upon 
or  relating  to  equitable  estates,  interests,  and  rights  in 
property  as  the  subject-matter  of  the  action,  whatever  may 
be  the  nature  of  the  remedy ;  and  secondly,  all  civil  cases  in 
which  the  remedy  granted  is  purely  equitable,  that  is,  ad- 
ministered by  courts  of  equity  alone,  whatever  may  be  the 
nature  of  the  primary  right,  estate,  or  interest  involved  in 
the  action.  I  purpose  now  to  describe  these  two  classes  in 
a  general  manner.  Equitable  primary  rights,  interests,  and 
estates  may  exist  in  things  real  and  in  things  personal,  in 
lands  and  in  chattels.  They  are  also  of  various  amounts 
and  degrees,  from  the  substantial  beneficial  ownership  of 
the  subject-matter  down  to  mere  liens.  In  all  cases,  how- 
ever, they  are  rights  in,  to,  or  over  the  subject-matter, 
recognized  and  protected  by  equity,  and  are  to  be  distin- 
guished from  the  so-called  *  *  equities, ' '  a  term  which,  when 
properly  used,  denotes  simply  the  right  to  some  remedy 

1—12 


§  147  EQUITY    JURISPRUDENCE.  178 

administered  by  courts  of  equity.^  ^  A  cestui  que  trust,  a 
mortgagee,  a  vendee  in  a  contract  for  the  sale  of  land,  is 
clothed  with  an  equitable  estate  or  interest ;  while  the  mere 
right  to  have  an  instrument  reformed  or  canceled,  or  to 
have  a  security  marshaled,  and  the  like,  is  properly  "an 
equity. ' ' 

§  147.  Equitable  Estate  Defined. — An  equitable  estate, 
in  its  very  conception,  and  as  a  fact,  requires  the  simulta- 
neous existence  of  two  estates  or  ownerships  in  the  same 
subject-matter,  whether  that  be  real  or  personal, — the  one 
legal,  vested  in  one  person,  and  recognized  only  by  courts 
of  law;  the  second  equitable,  vested  in  another  person, 
and  recognized  only  by  courts  of  equity.  These  two  in- 
terests must  be  separate,  and  as  a  rule,  must  be  held  by 
different  persons ;  for  if  the  legal  estate  and  the  equitable 
estate  both  become  vested  in  the  same  person  by  the  same 
right,  then,  as  a  general  rule,  a  merger  takes  place,  and 
the  legal  estate  alone  remains.  ^  There  are  indeed  ex- 
ceptions to  this  general  doctrine;  for  under  certain  cir- 
cumstances, as  will  appear  hereafter,  equity  prevents  such 
a  merger,  and  keeps  alive  and  distinct  the  two  interests, 
although  they  have  met  in  the  same  owner.^  In  all  cases 
of  equitable  estates,  as  distinguished  from  lesser  interests, 
whether  in  fee,  for  life,  or  for  years,  they  are  in  equity 
what  legal  estates  are  in  law;  the  ownership  of  the  equi- 
table estate  is  regarded  by  equity  as  the  real  ownership, 
and  the  legal  estate  is,  as  has  been  said,  no  more  than  the 

§  146,  1  The  term  "an  equity"  is  thus  synonymous  with  what  I  have 
denominated  an  equitable  remedial  right.  It  is,  however,  constantly  used 
in  a  broader  and  improper  sense,  as  describing  every  kind  of  right  which 
equity  jurisprudence  recognizes, — estates  and  interests  in  land,  or  chattels, 
liens,  and  rights  to  obtain  remedies.  Such  indiscriminate  use  of  the  term 
only  tends  to  produce  confusion  of  thought. 

§  147,  1  Selby  v.  Alston,  3  Ves.  339. 

§  147,  2  These  apparent  exceptions  really  confirm  the  general  rule. 

§  146,  (a)  This  paragraph  of  the  Coal  &  Nav.  Co.,  24  Pa.  Co.  Ct.  Rep. 
text   is   cited    in   Mengel   v.    Lehigh       152. 


179  THE    EXCLUSIVE    JURISDICTION.  §  148 

shadow  always  following  the  equitable  estate,  which  is  the 
substance,  except  where  there  is  a  purchaser  for  value  and 
without  notice  who  has  acquired  the  legal  estate.^  a  This 
principle  of  a  double  right,  one  legal  and  the  other  equi- 
table, is  not  confined  to  equitable  estates,  properly  so 
called;  it  is  the  essential  characteristic  of  every  kind  of 
equitable  interest  inferior  to  estates.  In  the  total  owner- 
ship resulting  from  mortgages,  or  from  the  operation  of 
the  doctrine  of  conversion,  or  from  the  assignment  of 
things  in  action,  and  other  interests  not  assignable  at  law, 
and  in  liens,  there  is  always  a  legal  title  or  estate  vested 
in  one  person,  recognized  by  courts  of  law  alone,  and  an 
equitable  interest,  ownership,  or  claim,  distinct  from  a 
mere  right  of  action  or  remedial  right,  vested  in  another 
person,  which  is  recognized,  and,  according  to  its  nature, 
protected  or  enforced  by  courts  of  equity. 

§  148.  Equitable  estates  and  interests  of  all  kinds  are 
separated  by  a  broad  line  of  distinction,  with  respect  to 
their  nature  and  the  mode  in  which  equity  deals  with  them, 
into  two  classes.  The  first  class  contains  those  in  which 
the  equitable  estate  is  regarded  as  a  permanent,  subsist- 
ing ownership;  the  separation  between  the  legal  and  equi- 
table titles  is  not  treated  as  an  anomaly,  much  less  a 
wrong,  but  as  a  fixed  and  necessary  condition  to  be  pre- 

§  147,  3  Attorney-Gen.  v.  Downing,  Wilm.  23 ;  Burgess  v.  Wheate,  1 
Eden,  223 ;  Mansell  v.  Mansell,  2  P.  Wms.  681 ;  Williams  v.  Owens,  2  Ves. 
603;  Brydges  v.  Brydges,  3  Ves.  120.  As  to  the  descent  of  equitable 
estates  as  contradistinguished  from  mere  equitable  rights  of  action  or 
"equities,"  see  Trash  v.  Wood,  4  Mylne  &  C.  324,  328;  Roberts  v.  Dix- 
well,  1  Atk.  609.  For  example  of  equitable  estate  in  fee  under  the  doe- 
trine  of  conversion  descending  to  heir,  see  Martin  v.  Trimmer,  L.  R.  11 
Ch.  Div.  341. 

§147,   (a)   This   paragraph   of   the  Co.   v.   Cahn,   102   Md.   530,   62   Atl. 

text  is  quoted  in  Patty  v.  Middleton,  819;  in  Watts  v.  Spencer,  51  Or.  262, 

82  Tex.  586,  17  S.  W.  909,  discussing  94    Pac.    39     (equitable    title    to    a 

the  equitable  estate  of  the  wife  in  water    right    protected    by    injunc- 

"community"     property     under     the  tion). 
Texas  law;  in  Safe  Deposit  &  Trust 


§  148  EQUITY   JURISPRUDENCE.  180 

served  as  long  as  the  equitable  interest  continues ;  and  the 
various  rules  and  doctrines  of  equity  are  concerned  with 
the  respective  rights  and  liabilities  of  the  two  owners, 
while  the  remedies  given  to  the  equitable  owner  are  in- 
tended to  preserve  his  estate,  and  to  protect  it  both  against 
the  legal  owner  and  against  third  persons.  The  class  em- 
braces most  species  of  express  trusts,  the  interests  created 
by  mortgages  as  originally  established  by  the  court  of 
chancery,  the  interests  resulting  from  an  assignment  of 
things  in  action.  These  various  species  of  equitable  es- 
tates and  interests  might  well  be  described  by  applying  to 
them  the  term  ''permanent."  In  the  second  class  the 
separation  of  the  two  interests  is  regarded  as  always 
temporary,  and  in  many  instances  as  actually  wrongful. 
There  is  a  certain  antagonism  between  the  equitable  and 
the  legal  ownership  or  right,  and  the  very  existence  of 
the  legal  estate  is  often  in  complete  violation  of  the  rights 
of  the  equitable  owner.  The  doctrines  and  rules  of  equity 
concerning  this  class  do  not  contemplate"  a  permanent 
separation  between  the  two  interests;  the  rights  of  the 
equitable  owner  are  hostile  to  those  of  the  legal  pro- 
prietor; while  the  remedies  given  to  the  equitable  owner 
always  have  for  their  object  the  perfecting  of  his  rights 
against  the  legal  estate,  and  very  generally  consist  in  com- 
pelling a  complete  transfer  of  the  legal  estate,  so  that  the 
equitable  owner  shall  obtain  the  legal  title  in  addition  to 
the  equitable  interest  which  he  already  possesses.  The 
class  embraces  resulting,  implied,  and  constructive  trusts, 
the  interests  arising  from  the  operation  of  the  doctrine  of 
conversion,  and  liens,  including  the  equitable  interest  of 
mortgagees  according  to  the  doctrine  which  prevails  in 
many  of  the  states.  Equitable  estates  of  the  first  class  are 
very  numerous  in  England,  by  reason  of  the  customs  of 
landed  proprietors  and  the  frequency  of  marriage  settle- 
ments, provisions  for  families  in  wills,  the  separate  prop- 
erty of  married  women,  charitable  foundations,  and  other 
species  of  express  trusts ;  and  a  very  large  part  of  equity 


181  THE    EXCLUSIVE    JURISDICTION".  §§149,150 

as  administered  in  England  is  concerned  with  these  perma- 
nent equitable  estates.  Although  not  unknown,  they  are, 
from  our  widely  different  social  customs  and  practices 
of  land-owners,  comparatively  very  infrequent  in  this 
country. 

§  149.  From  the  universality  of  this  double  ownership, 
or  separation  of  the  legal  and  equitable  titles  between  two 
proprietors  or  holders,  which  is  an  essential  feature  of 
trusts,  all  species  of  equitable  estates  and  interests  might 
possibly  be  regarded  as  particular  kinds  of  trusts,  or  as 
special  applications  of  the  general  principles  concerning 
trusts.  Thus  the  holder  of  the  legal  title  in  assignments 
of  things  in  action,  in  cases  of  conversion,  in  mortgages 
and  in  liens,  no  less  than  in  trusts  proper,  is  frequently 
spoken  of  as  the  trustee,  and  the  holder  of  the  equitable 
interest  as  the  cestui  que  trust.  It  would  be  possible, 
therefore,  to  treat  the  entire  jurisdiction  of  equity  over 
equitable  estates  and  interests,  and  these  estates  and  in- 
terests themselves,  as  based  upon  and  included  within  the 
single  subject  of  trusts. ^  But  this  method,  while  resting 
upon  some  analogies  and  external  resemblances,  would 
overlook  essential  differences  between  the  various  estates 
and  interests  created  by  equity,  and  would  therefore  be 
misleading.  Still,  as  this  form  of  a  double  ownership  or 
right  originated  in  the  notion  of  trusts,  and  as  all  the 
species  of  equitable  interests  are  connected  by  analogy, 
more  or  less  closely,  with  trusts,  it  becomes  necessary  to 
explain  the  essential  nature  of  trusts,  and  to  describe  the 
introduction  and  development  of  their  conception  with 
some  detail. 

§  150.  I  would  remark,  in  this  connection,  so  as  to  pre- 
vent misunderstanding,  that  there  are  many  important 
and  even  fundamental  principles  and  doctrines  which  are 
applied  in  all  parts  of  the  equity  jurisprudence,  but  which 

§  149,  1  This  method  has  been  pursued  partially,  if  not  wholly,  by  some 
text-writers:  See  Willard's  Eq.  Jur. 


§  150  EQUITY   JUKISPRUDENCE.  182 

do  not  belong  to  a  statement  of  its  jurisdiction.  These 
doctrines  do  not  determine  the  existence  of  equitable  es- 
tates and  interests,  nor  fix  the  form  and  nature  of  equitable 
remedies;  but  they  aid  in  defining  and  regulating  the 
rights,  duties,  and  liabilities  incident  to  such  estates  and 
interests,  and  furnish  rules  concerning  their  enjoyment, 
transfer,  devolution,  and  the  like;  and  they  also  serve  to 
determine  the  occasions  on  which  rights  of  action  arise, 
the  extent  to  which  parties  are  entitled  to  remedies,  and 
the  kind  of  remedy  appropriate'  to  secure  or  restore  the 
primary  right  invaded.  Among  these  important  prin- 
ciples and  doctrines  of  equity  I  mention,  as  illustrations, 
the  rules  established  for  the  construction  of  wills  and 
deeds;  the  principles  which  are  especially  concerned  with 
the  administration  of  estates,  and  the  settlement  of  the 
claims  of  creditors,  encumbrancers,  devisees,  legatees,  and 
others,  upon  funds  belonging  to  the  same  debtor,  including 
the  doctrines  of  equitable  and  legal  assets,  of  contribution 
and  exoneration,  of  marshaling  assets  and  securities,  of 
election,  of  satisfaction  and  performance,  of  priorities, 
and  of  notice ;  and  other  principles  of  equal  importance, 
the  equitable  position  of  bona  fide  purchasers,  the  theory 
of  valuable  and  meritorious  consideration,  the  appropria- 
tion of  pa\Tnents  and  the  apportionment  of  liabilities,  the 
relations  between  sureties  and  their  creditors  and  the  prin- 
cipal debtors,  the  control  of  transactions  between  persons 
in  fiduciary  relations,  the  equitable  theory  as  to  forfeitures 
and  penalties,  and  the  general  doctrines  concerning  fraud, 
mistake,  accident,  public  policy,  and  the  like.  These  and 
other  fundamental  principles  and  doctrines  are  invoked 
and  applied  throughout  every  branch  of  equity  jurispru- 
dence; they  aid,  to  a  greater  or  less  extent,  in  controlling 
every  species  of  equitable  primary  right,  estate,  or  inter- 
est, and  in  regulating  every  kind  of  remedial  right  and 
remedy  recognized  by  courts  of  equity.  While  they  form 
no  part  of  the  jurisdiction,  properly  so  called,  they  consti- 
tute a  most  important  feature  of  the  equity  jurisprudence, 


183  THE    EXCLUSIVE    JURISDICTION.  §  151 

and  will  be  discussed  under  their  appropriate  connections 
in  subsequent  chapters.  The  purely  equitable  estates  and 
interests  which  come  within  the  exclusive  jurisdiction  and 
constitute  the  first  branch  thereof  are  the  following,  sepa- 
rated, for  purposes  of  convenience  as  to  treatment,  into 
general  groups:  Trusts;  married  women's  separate  prop- 
erty; equitable  interests  arising  from  the  operation  of  the 
doctrine  of  conversion;  equitable  estates  or  interests  aris- 
ing from  mortgages  of  real  or  of  personal  property,  and 
from  pledges  of  chattels  or  securities;  equitable  liens  on 
real  and  on  personal  property;  equitable  interests  of  as- 
signees arising  from  assignments  of  things  in  action,  pos- 
sibilities, and  the  like,  not  assignable  at  law,  or  arising 
from  transactions  which  do  not  at  law  operate  as  assign- 
ments.i  I  shall  describe  with  only  so  much  detail  as  is 
necessary  each  one  of  these  groups  in  order. 

§  151.  Trusts.a — The  whole  theory  of  trusts,  which 
forms  so  large  a  part  of  the  equity  jurisprudence,  and 
which  is,  in  a  comprehensive  view,  the  foundation  of  all 
equitable  estates  and  interests,  has  undoubtedly  been 
developed  from  its  germ  existing  in  the  Eoman  law,  a 
peculiar  mode  of  disposing  of  property  by  testament  called 
the  '^fidei-commissum/'  In  a  fidei-commissum  the  tes- 
tator gave  his  estate  directly  to  his  heir,  but  accompanied 
the  bequest  with  a  direction  or  request  that  the  heir  should, 
on  succeeding  to  the  inheritance,  at  once  transfer  it  to  a 
specified  beneficiary.  At  first  the  claims  of  the  beneficiary 
were  purely  moral,  resting  wholly  upon  the  good  faith  of 
the  heir;  but  in  process  of  time  they  became  vested  rights, 

§  150,  1  See  1  Spence's  Eq.  Jur.,  429-434,  435-593,  594-598,  599-604. 
642.  To  these  might  be  added,  as  an  example  of  equitable  primary  rights 
not  being  estates  or  interests  in  nor  liens  on  specific  property,  the  right 
in  equity  of  a  creditor  against  the  personal  representatives  of  a  deceased 
joint  debtor,  although  his  right  is  wholly  gone  at  law;  and  the  similar 
right  of  the  personal  representatives  of  a  deceased  joint  creditor. 

§  151,  (a)  This  paragraph  is  cited  in  Brissell  t.  Knapp  (C.  0.  Nev.), 
155  Fed.  809. 


§  151  EQUITY   JURISPJIUDENCE.  184 

recognized  by  the  law  and  enforced  by  the  magistrates. ^ 
Borrowed  from  this  Roman  conception,  ''uses,"  by  which 
land  was  conveyed  to  or  held  by  A  to  the  use  or  for  the 
benefit  of  B,  seem  to  have  been  invented  during  the  latter 
part  of  the  reign  of  Edward  III.2  They  grew  rapidly  into 
favor,  and  it  is  said  that  during  the  reign  of  Henry  V. 
the  greater  part  of  the  land  in  England  was  held  in  this 
manner.  The  ''trusts,"  however,  of  modern  equity  juris- 
prudence are  all  directly  based  upon  the  celebrated  ''Stat- 
ute of  Uses,"  passed  in  the  twenty-seventh  year  of  the 
reign  of  Henry  VIII.  (A.  D.  1535),  although  the  principal 
doctrines  which  define  their  kinds  and  classes  and  regu- 
late their  operation  may  be  traced  to  the  uses  existing 
jjrior  to  the  statute.  Henry  VIII.,  in  compelling  Parlia- 
ment to  enact  the  statute  of  uses,  undoubtedly  intended  to 
destroy  the  entire  system  of  conveyances  to  uses,  by  which 
the  legal  and  equitable  estates  in  land  were  separated,  and 
vested  in  different  owners,  and  which,  for  many  reasons, 
he  regarded  as  a  fraud  upon  his  legal  rights  and  pre- 
rogatives; but  in  fact  no  such  result  followed.  From  the 
peculiar  language  of  the  enacting  clause,  and  by  the  judi- 
cial interpretation  placed  thereon,  all  the  various  kinds 
of  double  ownership  which  had  before  existed  under  the 
name  of  "uses"  were  preserved  under  the  name  of 
"trusts."  The  whole  system  fell  within  the  exclusive 
jurisdiction  of  chancery ;  the  doctrine  of  trusts  became  and 
continues  to  be  the  most  efficient  instrument  in  the  hands 
of  a  chancellor  for  maintaining  justice,  good  faith,  and 
good  conscience;  and  it  has  been  extended  so  as  to  embrace 
not  only  lands,  but  chattels,  funds  of  every  kind,  things  in 
action,  and  moneys.^    I  shall  merely  state,  without  de- 

§  151,  1  See  Institutes  of  Justinian,   b.  ii,  tit.   23,  §  1  j   Sandars's  ed., 
pp.  237,  238;  Institutes  of  Gaius,  ii.,  §§  246-259. 
§  151,  2  1  Spence's  Eq.  Jur.  439-442. 

§  151,  (b)  The  text  is   quoted   in       Clark  v.  Spanley,  122  Ark,  366,  183 
Mitchell    V.   Bank    of   Indianola,    98       S.  W.  964. 
Miss.  658,  54  South.  87;  and  cited  in 


185  THE    EXCLUSIV-E    JURISDICTION.  §§  152,  153 

scribing  in  this  part  of  my  work,  the  various  kinds  and 
classes  of  trusts  which  are  thus  subject  to  the  exclusive 
equitable  jurisdiction. 

§  152.  All  possible  trusts,  whether  of  real  or  personal 
property,  are  separated  by  an  important  line  of  division 
into  two  great  classes :  those  created  by  the  intentional 
act  of  some  party  having  the  dominion  over  the  property, 
done  with  a  view  to  the  creation  of  a  trust,  which  are  ex- 
press trusts;  those  created  by  operation  of  law,  where  the 
acts  of  the  parties  may  have  had  no  intentional  reference 
to  the  existence  of  any  trust,  which  are  implied  trusts. 
Express  trusts  are  again  separated  into  two  general 
classes:  private  and  public.  Private  trusts  are  those 
created  by  some  written  instrument,  deed,  or  will,  or  in 
some  trusts  of  personal  property  by  a  mere  verbal  declara- 
tion, without  any  writing,  for  the  benefit  of  certain  and 
designated  individuals,  in  which  the  cestui  que  trust,  or 
"beneficiary,"  is  a  known  and  certain  person  or  class  of 
persons.  Public,  or  as  they  are  frequently  termed,  chari- 
table, trusts  are  those  created  for  the  benefit  of  an  unas- 
certained, or  uncertain,  and  sometimes  fluctuating  body 
of  individuals,  in  which  the  cestuis  que  trustent  may  be  a 
class  or  portion  of  a  public  community,  as,  for  example, 
the  poor  of  a  particular  town  or  parish.^- 

§  153.a  Express  private  trusts  are  either  ** passive"  or 
'^ active."  An  express  private  passive  trust  exists  where 
land  is  conveyed  to  or  held  by  A  in  trust  for  B,  without 
any  power  expressly  or  impliedly  given  to  A  to  take  the 
actual  possession  of  the  land,  or  to  exercise  acts  of  owner- 
ship over  it,  except  by  the  direction  of  B.  The  naked  legal 
title  only  is  vested  in  A,  while  the  equitable  estate  of  the 
cestui  que  trust  is  to  all  intents  the  beneficial  ownership, 

§  152,   (a)   This  paragraph  is  cited       Crane,  80  N.  J.  Bq.  509,  43  L.  R.  A. 

•      TT   -4.  J    oi.  X       Ti:;i  V*      p    r.    „  (N.  S.)  604,  85  Atl.  408. 

in   United   States   Fidelity    &    Guar-        ^  '         ' 

§  153,  (a)  This  paragraph  is  cited 
anty  Co.  v.  Smith,  103  Ark.  145,  147       .^  ^^^^^^^  ^    ^^^^^^^  ^^  ^^^  ^    ^^ 

S.    W.    54;    Franklin    Township    v.       425    72  Atl.  960. 


§  153  EQUITY    JURISPRUDENCE.  186 

virtually  equivalent  in  equity  to  the  corresponding  legal 
estate.^  Express  private  active,  or  as  they  are  sometimes 
called,  special,  trusts  are  those  in  which,  either  from  the 
express  directions  of  the  written  instrument  declaring  the 
trust,  or  from  the  express  verbal  directions,  when  the 
trust  is  not  declared  in  writing,  or  from  the  very  nature 
of  the  trust  itself,  the  trustees  are  charged  with  the  per- 
formance of  active  and  substantial  duties  in  respect  to  the 
management  of  and  dealing  with  the  trust  property,  for 
the  benefit  of  the  cestuis  que  trustent.  They  may,  except 
where  restricted  by  statute,  be  created  for  every  purpose 
not  unlawful,  and  as  a  general  rule,  may  extend  to  every 
kind  of  property,  real  and  personal.  In  this  class,  the 
interest  of  the  trustee  is  not  a  mere  naked  legal  title,  and 
that  of  the  cestui  que  trust  is  not  the  real  ownership  of  the 
subject-matter.  The  trustee  is  generally  entitled  to  the 
possession  and  management  of  the  property,  and  to  the  re- 
ceipt of  its  rents  and  profits,  and  often  has,  from  the  very 
nature  of  the  trust,  an  authority  to  sell  or  otherwise  dis- 
pose of  it.  The  interest  of  the  beneficiary  is  more  limited 
than  in  passive  trusts,  and  in  many  instances  cannot  with 
accuracy  be  called  even  an  equitable  estate.  He  always 
has  the  right,  however,  to  compel  a  performance  of  the 
trust  according  to  its  terms  and  intent.^  The  foregoing 
classes  of  express  private  trusts  are  all  embraced  within 
the  general  exclusive  jurisdiction  of  equity  as  it  is  estab- 
lished by  the  English  court  of  chancery;  and  they  belong 
to  the  same  jurisdiction  as  it  is  administered  in  the  states 
of  this  country,  except  so  far  as  they  have  been  abrogated 
or  modified  by  statute.  In  some  of  the  states  the  legis- 
lature has  not  interfered,  so  that  all  these  species  of  pri- 

§153,  11  Spence's  Eq.  Jur.  495-497;  Cook  v.  Fountain,  3  Swanst. 
591,  592,  per  Lord  Nottingham;  Adair  v.  Shaw,  1  Schoales  &  L.  262. 
per  Lord  Redesdale;  Lloyd  v,  Spillett,  2  Atk.  150;  Raikes  v.  Ward,  1 
Hare,  447,  454. 

§153,  2  1  Spence's  Eq.  Jur.  496,  497;  Lord  Glenorchy  v.  Bossville. 
Cas.  t.  Talb.  3. 


187  THE    EXCLUSIVE    JURISDICTION.  §  154 

vate  trusts  have  a  theoretical,  even  if  not  an  actual,  exist- 
ence. In  several  of  the  states,  however,  great  changes 
have  been  made  by  statute.  By  the  common  type  of  this 
legislation,  wherever  it  has  been  adopted,  all  express  pri- 
vate passive  trusts  in  land  have  been  abolished,  and  the 
express  private  active  trusts  have  been  restricted  to  a  few 
specified  forms  and  objects. ^ 

§  154.  Express  Public  Trusts  or  Charities. — In  private 
trusts  there  is  not  only  a  certain  trustee  who  holds  the 
legal  estate,  but  there  is  a  certain  specified  cestui  que  trust. 
It  is  an  essential  feature  of  public  or  charitable  trusts, 
that  the  beneficiaries  are  uncertain,  a  class  of  persons  de- 
scribed in  some  general  language,  often  fluctuating,  chan- 
ging in  their  individuals,  and  partaking  of  a  quasi  public 
character.  The  most  patent  examples  are  ''the  poor" 
of  a  specified  district,  in  a  trust  of  a  benevolent  character, 
or  ''the  children"  of  a  specified  town,  in  a  trust  for  educa- 
tional purposes.  It  is  a  settled  doctrine  in  England  and 
in  many  of  the  American  states,  that  personal  property, 
and  real  property  except  when  prohibited  by  statutes  of 
mortmain,  may  be  bequeathed  or  conveyed  in  trust  for 
charitable  uses  and  purposes,  for  the  benefit  of  such  un- 
certain classes;  and  if  the  purposes  are  charitable  within 
the  meaning  given  to  that  term,  the  trust  falls  within  the 
jurisdiction  of  equity,  and  will  be  enforced. ^     The  trusts 

§  153,  3  As  examples  of  this  type  of  legislation,  see  1  R.  S.  of  N.  Y., 
p.  727,  §§45-65;  CivU  Code  of  Cal.,  §§847,  852,  857-871. 

§  154,  1  Moriee  v.  Bishop  of  Durham,  9  Ves.  399,  405,  10  Yes.  522, 
541;  Mitford  v.  Reynolds,  1  Phila.  185;  Nash  v.  Morley,  5  Beav.  177; 
Kendall  v.  Granger,  5  Beav.  300;  Townsend  v.  Cams,  3  Hare,  257; 
Nightingale  v.  Goulburn,  5  Hare,  484;  Attorney-General  v.  Aspinal,  2 
Mylne  &  C.  613,  622,  623;  British  :Musenm  v.  White,  2  Sim.  &  St.  594, 
596;  Coggeshall  v.  Pelton,  7  Johns.  Ch.  292,  11  Am.  Dec.  471;  Salton- 
stall  V.  Sanders,  11  Allen,  446 ;  American  Academy  v.  Harvard  College, 
12  Gray,  582;  Jackson  v.  Phillips,  14  Allen,  539,  per  Gray,  J.  Trusts 
for  private  objects  do  not  fall  within  the  jurisdiction  over  charitable 
trusts,  and  are  void  if  they  create  perpetuities;  as,  for  example,  those 
for  the  erection  or  repair  of  private  tombs  or  monuments :  In  re  Rickard, 


§  154  EQUITY    JURISPRUDENCE.  188 

over  which  this  peculiar  jurisdiction  extends,  and  which 
mark  its  special  nature,  should  not  be  confounded  with 
gifts  to  corporations  which  are  authorized  by  their  char- 
ters to  receive  and  hold  property,  and  apply  it  to  objects 
which  fall,  perhaps,  within  the  general  designation  of 
*' charitable."  Such  gifts  are  regulated  either  by  the  rules 
of  law  applicable  to  corporations,  or  by  the  provisions  of 
their  individual  charters. 2  There  is  a  wide  divergence 
among  the  states  of  this  country  in  their  acceptance  of 
the  doctrine  concerning  charitable  trusts.  In  some  of 
them,  either  from  a  statutory  abolition  of  trusts,  or  from 
the  general  provisions  of  statutes  concerning  perpetuities, 
or  from  the  general  public  policy  of  the  state  legislation, 
it  is  held  that  charitable  trusts  do  not  exist  at  all,  except 
in  the  instances  expressly  authorized  by  statute,  which  are 
all  gifts  to  corporations. 3  In  a  much  larger  number  of 
the  states,  the  jurisdiction  over  charitable  trusts,  either  on 
the  ground  that  the  statute  of  Elizabeth  is  in  force,  or  as 
a  part  of  the  ordinary  powers  of  equity,  has  been  accepted 
in  a  modified  form  and  to  a  limited  extent,  and  such  trusts 
are  upheld  only  when  the  property  is  given  to  a  trustee 
sufficiently  certain,  and  for  purposes  and  beneficiaries 
sufficiently  definite.  In  a  very  few  of  the  states  the  juris- 
diction seems  to  be  accepted  to  its  full  extent,  and  to  be 
exercised  in  substantially  the  same  manner  as  it  is  by  the 
English  court  of  chancery.'* 

31  Beav.  244;  Fowler  v.  Fowler,  33  Beav.  616;  Hoare  v.  Osborne,  L.  R.  1 
Eq.  585;  or  those  to  found  a  private  museum:  Thompson  v.  Shakespeare, 
1  De  Gex,  F.  &  J.  399;  or  those  for  the  benefit  of  a  private  company: 
Attorney-General  v.  Haberdashers'  Co.,  1  Mylne  &  K.  420;  or  for  a  mere 
private  charity;  Ommanney  v.  Butcher,  Turn.  &  R.  260. 

§  154,  2  See  Levy  v.  Levy,  33  N.  Y.  97,  112-118,  per  Wright,  J. ; 
Baseom  v.  Albertson,  34  N.  Y.  584,  587-621,  per  Porter,  J. 

§  154,  3  New  York  is  a  leading  example  of  this  class :  See  Baseom  v. 
Albertson,  34  N.  Y.  584 ;  Levy  v.  Levy,  33  N.  Y.  97 ;  Beekman  v.  Bonsor, 
23  N.  Y.  298,  80  Am.  Dec.  269;  Holmes  v.  Mead,  52  N.  Y.  332,  339; 
Burrill  v.  Boardman,  43  N.  Y.  "254,  263,  3  Am.  Rep.  694;  Adams  v.  Perry, 
43  N.  Y.  487. 

§  154,  4  See  Part  Third,  Chapter  of  Charitable  Trusts,  post. 


189  THE    EXCLUSIVE    JURISDICTION.  §  155 

§  155.  Trusts  Arising  by  Operation  of  Law. — The  sec- 
ond great  division  of  trusts,  and  the  one  which  in  this 
country  especially  affords  the  widest  field  for  the  jurisdic- 
tion of  equity  in  granting  its  special  remedies  so  superior 
to  mere  recoveries  of  damages,  embraces  those  which  arise 
by  operation  of  law  from  the  deeds,  wills,  contracts,  acts, 
or  conduct  of  parties,  without  any  express  intention,  and 
often  without  any  intention,  but  always  without  any  words 
of  declaration  or  creation.^  They  are  of  two  species, 
"resulting"  and  ''constructive,"  which  latter-  are  some- 
times called  trusts  ex  maleficio;  and  both  these  species  are 
properly  described  by  the  generic  term  "implied  trusts."  ^ 
Resulting  trusts  arise  where  the  legal  estate  is  disposed  of 
or  acquired,  not  fraudulently  or  in  the  violation  of  any 
fiduciary  duty,  but  the  intent  in  theory  of  equity  appears 
or  is  inferred  or  assumed  from  the  terms  of  the  disposi- 
tion, or  from  the  accompanying  facts  and  circumstances, 
that  the  beneficial  interest  is  not  to  go  with  the  legal  title. 

§  155,  1  There  is  another  kind  which  are  sometimes,  but  very  improp- 
erly, called  "implied"  trusts;  namely,  where  a  party,  by  a  written  instru- 
ment, deed,  or  will,  has  intended  to  create  a  trust  for  some  specific  object, 
and  has  used  language  showing  that  intent;  but  the  language  he  has 
employed  does  not  in  express  terms  declare  and  create  the  trust,  so  that 
the  court,  in  deciding  upon  the  effect  of  the  instrument,  is  obliged  to 
construe  or  interpret  the  words,  in  order  that  they  may  amount  to  a 
declaration  of  the  trust.  The  most  familiar  illustration  is  that  of  a  trust 
arising  from  mere  precatory  words  in  a  deed  or  will.  These  trusts  have 
no  resemblance  whatever  to  those  which  "arise  by  operation  of  law"; 
they  are  in  every  respect  express  trusts,  either  active  or  passive;  they  only 
differ  in  form  from  ordinary  express  trusts  from  a  certain  vagueness  or 
incompleteness  of  the  language  used  to  create  or  declare  them,  so  that 
a  court  is  forced  to  interpret  this  language.  When  interpreted,  it  be- 
comes in  every  sense  an  express  declaration  of  the  trust.  To  include 
these  instances  among  implied  trusts  is  to  violate  every  principle  of  true 
classification,  and  to  introduce  an  unnecessary  confusion  into  the  subject. 
All  true  implied  trusts  differ  from  express  trusts,  not  only  in  the  manner 
of  their  creation,  but  also  in  their  essential  features  and  qualities. 

§155,  (a)  The  text  is  quoted  in  Morris  v.  Newlin  Lumber  Co.,  100 
Ark.  253,  140  S.  W.  1. 


§  155  EQUITY    JURISPRUDENCE.  190 

In  such  a  case  a  trust  "results"  in  favor  of  the  person  for 
whom  the  equitable  interest  is  thus  assumed  to  have  been 
intended,  and  whom  equity  deems  to  be  the  real  owner.^^ 
Constructive  trusts  are  raised  by  equity  for  the  purpose 
of  working  out  right  and  justice,  where  there  was  no  in- 
tention of  the  party  to  create  such  a  relation,  and  often 
directly  contrary  to  the  intention  of  the  one  holding  the 
legal  title.  All  instances  of  constructive  trust  may  be  re- 
ferred to  what  equity  denominates  fraud,  either  actual  or 
constructive,  including  acts  or  omissions  in  violation  of 
fiduciary  obligations.  If  one  party  obtains  the  legal  title 
to  property,  not  only  by  fraud  or  by  violation  of  confidence 
or  of  fiduciary  relations,  but  in  any  other  unconscientious 
manner,  so  that  he  cannot  equitably  retain  the  property 
which  really  belongs  to  another,  equity  carries  out  its 
theory  of  a  double  ownership,  equitable  and  legal,  by  im- 
pressing a  constructive  trust  upon  the  property  in  favor 
of  the  one  who  is  in  good  conscience  entitled  to  it,  and  who 
is  considered  in  equity  as  the  beneficial  owner.^c     Courts 

§  155,  2  The  following  cases  furnish  illustrations :  Ackroyd  v.  Smith- 
son,  1  Brown  Ch.  503,  1  Lead.  Cas.  Eq.  1177;  Robinson  v.  Taylor,  2 
Brown  Ch.  589;  Berry  v.  Usher,  11  Ves.  87;  Watson  v.  Hayes,  5  Mylne 
&  C.  125;  Jessop  v.  Watson,  1  Mylne  &  K.  665;  Eyre  v.  Marsden,  2  Keen, 
564;  Burley  v.  Evelyn,  16  Sim.  290;  Wood  v.  Cone,  7  Paige,  472,  476; 
Wood  V.  Keyes,-  8  Paige,  365,  369;  Millard  v.  Hathaway,  27  Cal.  119; 
Malony  v.  Sloans,  44  Vt.  311. 

§  155,  3  1  Perry  on  Trusts,  §  166 ;  1  Spenee's  Eq.  Jur.  511,  512 ;  Mc- 
Laue  V.  Johnson,  43  Vt.  48;  Collins  v.  Collins,  6  Lans.  368;  Thompson 
V.  Thompson,  16  Wis.  94;  Pillow  v.  Brown,  26  Ark.  240;  Ryan  v.  Dox, 

§155,   (b)   The    text   is   quoted   in  252;   Morris  v.  Newlin  Lumber  Co., 

Springer   v.   Young,   14   Or.    280,    12  100    Ark.    253,   140   S.    W.    1;    Teich 

Pac.    400.     The    text    is     cited    in  v.    San    Jose    Safe    Deposit    Bank 

Flesner  v.   Cooper,  39  Okl.   133,   134  of  Savings,  8  Cal.  App.  397,  97  PaC 

•Pac.  379;  Aylesworth  v.  Aylesworth  167;  in  Davenport  v.  Burke   (Idaho), 

(Ind.    App.),    160    N.    E.    907;    and  167  Pac.   481;   in  Holliday  v.  Perry, 

quoted  in  Morris  v.  Newlin  Lumber  38    Ind.    App.    588^    78    N.    E.    877 

Co.,  100  Ark.  253,  140  S.  W.  1.  (the    fraud    which    gives    rise    to    a 

§  155,  (c)    Constructive    Trusts. —  constructive    trust    need    not    be    in 

The  text  is  quoted   in   Patterson   v.  the    inception    of    the    transaction); 

Dickinson,  193  Fed.  328,  113  C,  C.  A.  in  Springer  v.  Young,  14  Or.  280,  12 


191  THE    EXCLUSIVE    JURISDICTION.  §  156 

of  equity,  by  tliiis  extending  the  fundamental  principle  of 
trusts — that  is,  the  principle  of  a  division  between  the 
legal  estate  in  one  and  the  equitable  estate  in  another — 
to  cases  of  actual  or  constructive  fraud  and  breaches  of 
good  faith,  are  enabled  to  wield  a  remedial  power  of 
tremendous  efficacy  in  protecting  the  rights  of  property. 

§  156.  Executors  and  Administrators — Estates  of  De- 
ceased Ov/ners. — The  theory  of  trusts  express  and  implied 
having  been  established,  it  was  easily  extended  to  certain 
other  analogous  subjects  which  were  thus  brought  within 
the  equitable  jurisdiction.  One  of  the  most  important 
of  these  was  the  administration  of  the  estates  of  deceased 
persons.  The  relation  subsisting  between  executors 
and  administrators  on  the  one  hand,  and  legatees,  dis- 
tributees, and  creditors  on  the  other,  has  so  many  of  the 
features  and  incidents  of  an  express  active  trust,  that  it 
has  been  completely  embraced  within  the  equitable  juris- 
diction in  England,  and  also  in  the  United  States,  where 
statutes  have  not  interfered  to  take  away  or  to  abridge  the 
jurisdiction.^-     At  the  common  law  no  action  lay  to  re- 

34  N.  Y.  307,  90  Am.  Dec.  G96;  Dodd  v.  Wakeman,  26  N.  J.  Eq.  484; 
Green  v.  Ball,  4  Bush,  5S6;  Hunt  v.  Roberts,  40  Me.  187;  Hodges  v. 
Howard,  5  R.  I.  149;  Laing  v.  McKee,  13  Mich.  124,  87  Am.  Dec.  738; 
Nelson  v.  Worrall,  20  Iowa,  469;  Coyle  v.  Da\is,  20  Wis.  593;  Hidden  v. 
Jordan,  21  Cal.  92;  Sandfoss  v.  Jones,  35  Cal.  481. 

Pac.   400;   in   Clongh  v.  Dawson,   69  oil  leases  for  his  principal,  purchases 

Or.  52,   133  Pac.  345,   138  Pac.  233;  for    himself);    Harrop    v.    Cole,    85 

Kersey  v.  Kersey,  76  W.  Va.  70,  85  N.  J.  Eq.  32,  95  Atl.  378  (agent  to 

S.  E.  22.     The  text  is  cited  in  Bris-  buy  purchases  with  his  own  money 

sell  V.  Knapp  (C.  C.  Nev.),  155  Fed.  for    himself);    and    paraphrased    in 

809;    in    Sanguinetti    v.    Eossen,    12  Wellner  v.  Eckstein,  105  Minn.  444, 

Cal.    App.    623,    107   Pac.    560    (con-  117  N.  W.  830,  in  the  very  instructive 

structive  trust  arising  from  convey-  opinion   of   Elliott,   J.,   holding  that 

ance  to  attorney  on  his  oral  promise  in  case  of  inheritance  by  a  murderer 

to    execute    a    writing    reciting    the  from  the  person  murdered,  he  takes 

terms    of    the    trust) ;    in    Bellevue  title  as  trustee  ex  malef.cio. 
State  Bank  v.  Coffin,  22  Idaho,  210,  §  156,   (a)   The    text   is    quoted    in 

125  Pac.  816;  Fox  v.  Simons,  251  111.  Newberry    v.    Wilkinson,    199    Fed. 

316,  96  N.  E.  233  (agent  to  purchase  673,  678,  118  C.  C.  A.  111. 


§  156  EQUITY    JURISPRUDENCE.  192 

cover  a  legacy,  unless  it  was  a  specific  legacy  of  goods,  and 
the  executor  had  assented  to  it  so  that  the  property  therein 
vested  in  the  legatee. ^  Although  individual  creditors 
might  recover  judgments  at  law  for  the  amount  of  their 
respective  claims,  the  legal  procedure  furnished  absolutely 
no  means  by  which  the  rights  and  claims  of  all  distributees, 
legatees,  and  creditors  could  be  ascertained  and  ratably 
adjusted,  the  assets  proportionably  distributed  among 
those  having  demands  of  an  equal  degree  as  to  priority, 
and  the  estate  finally  settled.  The  power  of  the  ancient 
'* spiritual  courts"  over  the  subject-matter  was  also  very 
limited  and  imperfect;  in  many  instances  it  could  furnish 
no  relief,  and  was  at  best  but  ''a  lame  jurisdiction." 2 
Where  the  claim  against  an  estate  was  purely  equitable, 
as  where  a  testator  had  charged  land  with  his  debts  or 
legacies,  thus  creating  an  equitable  lien,  or  had  devised 
property  in  trust  for  the  payment  of  debts  or  legacies,  and 
the  like,  the  court  of  chancery  had,  of  course,  an  original 
and  exclusive  jurisdiction.  In  all  other  cases  it  obtained 
a  jurisdiction  because  its  relief  was  more  complete,  and 
it  alone  could  provide  for  the  rights  and  claims  of  all  par- 
ties. This  jurisdiction  at  length  became  firmly  estab- 
lished and  practically  exclusive  on  this  ground  of  trusts; 
that  the  relation  between  the  executor  or  administrator 
and  the  parties  interested  in  the  estate  is  virtually  one  of 
express  trust,  which  equity  has  always  the  power  to  en- 
force.3i>  Throughout  the  great  majority  of  the  United 
States,  however,  this  jurisdiction  of  equity,  even  where 
not  expressly  abrogated,  has  become  virtually  obsolete. ° 

§  156,  1  Deeks  v.  Strutt,  5  Tenn  Rep.  690 ;  Doe  v.  Guy,  3  East,  120. 

§  156,  2  See  Pamplin  v.  Green,  3  Cas.  Chan.  95 ;  Matthews  v.  Newby, 
1  Vern.  134,  2  Freem.  189;  Petit  v.  Smith,  5  Mod.  247. 

§  156,  3  See  Adair  v.  Shaw,  1  Sehoales  &  L.  262,  per  Lord  Redesdale; 
Anonymous,  1  Atk.  491,  per  Lord  Hardwieke. 

§  156,  (b)  The  text  is  cited  to  this  §  156,  (c)  The   text  is    quoted   in 

effect  in  Siglin  v.  Smith,  168  Ala.  Price  v,  Laing,  67  W.  Va.  373,  68 
398,  53  South.  260.  S.  E.  24. 


193  THE    EXCLUSIVE    JURISDICTION".  §  157 

Partly  from  prohibitory  and  partly  from  permissive  stat- 
utes, the  jurisdiction  over  the  administration  of  decedents' 
estates  in  all  ordinary  cases  has  been  wholly  withdrawn 
from  the  equity  tribunals  and  exclusively  exercised  by  the 
probate  courts  in  all  the  states,  with  very  few  exceptions.^ 
Although  the  general  jurisdiction  of  equity  over  the  sub- 
ject of  administrations  is  thus  practically,  and  even  in 
some  instances  expressly,  abolished  in  so  many  states,  still 
the  jurisdiction  remains  in  all  matters  of  trust  created  by 
or  arising  from  the  provisions  of  wills;  and  thus  a  large 
field  is  left  for  the  exercise  of  the  equitable  jurisdiction  in 
the  construction  of  wills,  and  in  the  determination  and  en- 
forcement of  equitable  rights,  interests,  and  estates  created 
and  conferred  thereby.^ ^ 

§  157.  Fiduciary  Relations. — The  equitable  doctrine  of 
trusts  has  also  been  extended  so  as  to  embrace,  either 
wholly  or  partially,  many  other  relations  besides  those  of 
trusts  created  by  private  owners  of  property.  Guardians 
of  infants,  committees  or  guardians  of  the  insane,  re- 
ceivers, directors,  and  other  managers  of  stock  corpora- 
tions, and  the  like,  are  in  a  general  sense  trustees,  or 
rather  quasi  trustees,  in  respect  of  the  particular  persons 
towards  whom  they   stand  in   a   fiduciary   relation, — the 

§  156,  4  See  post,  chap,  iii.,  sec.  ii.,  §§  346-352,  where  this  matter  is 
more  fully  described. 

§  156,  5  Whitman  v.  Fisher,  74  111.  147;  Campbell's  Appeal,  80  Pa. 
St.  298;  Harris  v.  Yersereau,  52  Ga.  153;  Dorsheimer  v.  Rorback,  23 
N.  J.  Eq.  46 ;  Youmans  v.  Youmans,  26  N.  J.  Eq.  149 ;  Haag  v.  Sparks,  27 
Ark.  594;  Jones  v.  Jones,  28  Ark.  19;  Duncan  v.  Duncan,  4  Abb.  N.  C. 
'275;  Marlett  v.  Marlett,  14  Hun,  313;  Chipman  v.  Montgomery,  63  N.  Y. 
221;  Bailey  v.  Briggs,  56  N.  Y.  407;  Brundage  v.  Brundage,  65  Barb. 
397;  Collins  v.  Collins,  19  Ohio  St.  468;  Perkins  v.  Caldwell,  77  N.  C. 
433;  Heustis  v.  Johnson,  84  111.  61;  Matter  of  Broderick's  Will,  21  Wall. 
504. 

§  156,  (d)  This  paragraph  is  cited       South.  84.     See,  as  to  the  jurisdic- 
in  Jenkins  y.  Jenkins,  83  S.  C.  537,       tion  in  administration  of  decedents' 
65  S.  E.  736.     The  text  is  cited  in       estates,  post,  §§  1152-1154,  and  notes. 
Benedict    v.     Wilmarth     (Fla.),     35 
1—13 


§  158  EQUITY    JURISPRUDENCE.  194 

wards,  stockholders,  etc.^^  But  the  analogy  should  not  be 
pushed  too  far.  The  trust  which  exists  in  these  and  simi- 
lar cases  is  not  of  so  high  and  complete  a  character  that 
equity  has  an  exclusive  jurisdiction  over  the  rights  and 
interests  of  the  beneficiaries,  to  maintain  and  enforce  them 
against  the  trustees.  The  law,  by  means  of  its  actions 
ex  cequo  et  bono,  supplies  the  beneficiaries  with  sufficient 
remedies  for  many  violations  of  such  fiduciary  relations. 
The  relations  in  which  such  persons  stand  towards  their 
beneficiaries  partake  so  much  of  the  trust  character,  how- 
ever, that  equity  possesses  a  jurisdiction  in  many  instances 
where  its  remedies  are  more  effective,  or  its  modes  of 
procedure  enable  the  court  to  do  more  complete  justice  by 
its  decrees. 

§  158.  While  the  jurisdiction  of  equity  in  these  last- 
mentioned  cases  of  fiduciary  relations  is  concurrent  and 
depends  upon  the  superiority  of  its  remedies,  the  exclusive 
jurisdiction  in  the  cases  before  described  of  private  ex- 
press trusts  proper,   whether  passive  or  active,  is  wholly 

§  157,  1  Keech  v.  Sanford,  Sel.  Cas.  Ch.  61,  1  Lead.  Cas.  Eq.  48;  Fox 
V.  Maekreath,  2  Brown  Ch.  400,  2  Cox,  320,  1  Lead.  Cas.  Eq.  188;  Monet 
V.  Paske,  2  Atk.  54 ;  Kimber  v.  Barber,  L.  R.  8  Ch.  56 ;  Powell  v.  Glover, 
3  P.  Wms.  252;  Wedderburn  v.  Wedderbum,  4  Mylne  &  C.  41;  Gt. 
Luxembourg  R'y  Co.  v.  Magnay,  25  Beav.  586 ;  Docker  v.  Somes,  2  Mylne 
&  K.  665;  Knox  v.  Gye,  L.  R.  5  H.  L.  656,  675;  Gresley  v.  Mousley,  4 
De  Gex  &  J.  78,  3  De  Gex,  F.  &  J.  433;  Holman  v.  Loynes,  4  De  Gex, 
M.  &  G.  270;  Hesse  v.  Briant,  6  De  Gex,  M.  &  G.  623;  Knight  v.  Bowyer,  2 
De  Gex  &  J.  421,  445;  Savery  v.  King,  5  H.  L.  Cas.  627;  Dodge  v.  Woolsey, 
18  How.  331,  341 ;  Koehler  v.  Black  R.,  etc.,  Co.,  2  Black,  715 ;  Butts  v. 
Wood,  37  N.  Y,  317;  Bliss  v.  Matteson,  45  N.  Y.  22;  Neall  v.  Hill,  16. 
Cal.  145,  76  Am.  Dec.  508. 

§157,  (a)  The  text  is  cited  in  Hammersmith  (Ind.  App.),  81  N.  E'. 
Benedict  v.  Wilmarth  (Fla.),  35  614  (same) ;  Mitchell  v.  Bank  of  In- 
South.  84;  in  Donahue  v.  Quacken-  dianola,  98'  Miss.  658,  54  South,  87. 
bush,  75  Minn.  43,  77  N.  W.  430  See,  also,  Campbell's  Automatic 
(receiver  as  trustee) ;  in  Frieker  v.  Safety  Gas  Burner  Co.  v.  Hammer, 
American  Mfg.  &  Imp.  Co.,  124  Ga.  78  Or.  612,  153  Pac.  475  (joint  ad- 
165,  52  S.  E.  65  (corporation  di-  venturers), 
rectors    and    managers) ;    Tevis    v. 


195  THE    EXCLUSIVE    JURISDICTION.  §  155 

independent  of  the  nature  of  the  remedies  given.  The 
actual  remedies  which  a  court  of  equity  gives  depend  upon 
the  nature  and  object  of  the  trust;  sometimes  they  are  spe- 
cific in  their  character,  and  of  a  kind  which  the  law  courts 
cannot  administer,  but  often  they  are  of  the  same  general 
kind  as  those  obtained  in  legal  actions,  being  mere  re- 
coveries of  money.  A  court  of  equity  will  always  by  its 
decree  declare  the  rights,  interest,  or  estate  of  the  cestui 
que  trust,  and  will  compel  the  trustee  to  do  all  the  specific 
acts  required  of  him  by  the  terms  of  the  trust.  It  often 
happens  that  the  final  relief  to  be  obtained  by  the  cestui 
que  trust  consists  in  the  recovery  of  money.  This  rem- 
edy the  courts  of  equity  will  always  decree  when  necessary, 
whether  it  is  confined  to  the  payment  of  a  single  specific 
sum,  or  involves  an  accounting  by  the  trustee  for  all  that 
he  has  done  in  pursuance  of  the  trust,  and  a  distribution 
of  the  trust  moneys  among  all  the  beneficiaries  who  are 
entitled  to  share  therein.* 

§  159.  Married  Women's  Separate  Property. — The 
married  woman's  separate  estate,  prior  to  any  legislation 
on  the  subject,  is  merely  a  particular  case  of  trusts,  and 
the  jurisdiction  of  equity  over  it  has  been  long  estab- 
lished.i  As  the  wife's  interest  in  the  property  held  to  her 
separate  use  is  wholly  a  creature  of  equity,  the  equitable 
jurisdiction  over  it  is  of  course  exclusive;  and  in  direct 
antagonism  to  the  common-law  theory,  equity  regards  and 
treats  the  wife,  with  respect  to  such  separate  estate,  as 
though  she  were  unmarried.^     This  equitable  separate  es- 

§  159,  1  See  Drake  v.  Storr,  1  Freem.  205,  which  shows  that  in  1695 
the  wife's  separate  estate  was  a  well-settled  doctrine  of  equity. 

§  159,  2  Lady  Arundel  v.  Phipps,  10  Yes.  140 ;  Grigby  v.  Cox,  1  Ves. 
Sen.  517 ;  Hulme  v.  Tenant,  1  Brown  Ch.  16 ;  Field  v.  Sowle,  4  Russ.  112 ; 
Owens  V.  Dickenson,  Craig  &  P.  48;  Nantes  v.  Con-oek,  9  Ves.  189;  Aylett 

§  158,   (a)  Exclusive    Jurisdiction  Indianola,   98   Miss.    658,   54   South. 

Embraces     All     Cases     of     Express  87;  and  cited  in  Warren  v.  Warren, 

Trusts.— This  paragraph  of  the  text  75  N.  J.  Eq.  415,  72  Atl.  960. 
is    quoted   in    Mitchell    v.    Bank    of 


§^  IGO,  161  EQUITY    JUEISPRUDENCE.  196 

tate  of  married  women  being  only  a  species  of  trust  prop- 
erty held  upon  express  trust,  either  passive  or  active,  it  is 
of  course  embraced  within  the  legislation  of  various  states 
abolishing  or  restricting  and  regulating  such  trusts. 

§  160.  This  jurisdiction  of  equity,  so  far  as  it  is  con- 
cerned with  the  contracts  of  married  women,  and  their 
other  dealings  with  their  separate  property,  has  been 
greatly  enlarged  by  the  modem  legislation  in  many  of  the 
states.  These  statutes,  it  is  true,  do  not  create  any  equi- 
table estate;  their  effect  is  to  vest  a  purely  legal  title  in 
the  wife,  and  to  free  such  title  from  the  interests  and 
claims  and  rights  which  the  common  law  gave  to  the  hus- 
band. But  while  the  legislation  thus  acts  upon  her  title, 
it  does  not,  in  general,  remove  the  common-law  disability 
of  entering  into  contracts,  or  clothe  the  wife  with  a  gen- 
eral capacity  of  making  contracts  which  are  binding  at 
law,  and  enforceable  against  them  by  legal  actions.  The 
matter  of  married  women's  contracts  is  therefore  left  ex- 
clusively to  courts  of  equity,  and  is  governed  by  equitable 
doctrines.  The  jurisdiction  of  equity  in  the  enforcement 
of  married  women's  liabilities  against  their  separate  prop- 
erty has  thus  been  enlarged,  since  it  has  been  extended  in 
these  states  to  all  the  property  which  a  wife  may  hold  by 
a  legal  title,  and  is  not  confined  to  such  equitable  estate  as 
is  held  for  her  separate  use.i 

§  161.  Equitable  Estates  Arising  from  the  Doctrine  of 
Conversion. — The  doctrine  of  "conversion"  is  a  particular 
application  of  the  principle  that  equity  regards  as  done 
what  ought  to  be  done.  The  doctrine  itself  was  thus  stated 
by  an  eminent  English  equity  judge  in  the  leading  case 

V.  Ashton,  1  Mylne  &  C.  105,  112 ;  La  Touche  v.  La  Touche,  3  Hurl.  &  C. 
576 ;  Heatley  v.  Thomas,  15  Ves.  596 ;  McHenry  v.  Davies,  L.  R.  10  Eq. 
88 ;  Murray  v.  Barlee,  3  Mylne  &  K.  209 ;  Owen  v.  Homan,  4  H.  L.  Cas. 
997;  Johnson  v.  Gallagher,  3  De  Gex,  F.  &  J.  494,  521. 

§  160,  1  See  post,  part  iii.,  chapter  on  Married  Women's  Separate 
Property,  where  an  abstract  of  the  legislation  in  the  various  states  is  given. 


197  THE    EXCLUSIVE    JURISDICTION.  §  162 

upon  the  subject:  ''Nothing  is  better  settled  than  this 
principle,  that  money  directed  to  be  employed  in  the  pur- 
chase of  land,  and  land  directed  to  be  sold  and  turned  into 
money,  are  to  be  considered  as  that  species  of  property 
into  which  they  are  directed  to  be  converted;  and  this,  in 
whatever  manner  the  direction  is  given,  whether  by  will, 
by  way  of  contract,  marriage  articles,  settlement,  or  other- 
wise ;  and  whether  the  money  is  actually  deposited  or  only 
covenanted  to  be  paid,  whether  the  land  is  actually  con- 
veyed or  only  agreed  to  be  conveyed,  the  owner  of  the 
fund,  or  the  contracting  parties,  may  make  land  money,  or 
money  land.  The  cases  establish  this  rule  universally."  ^ 
As  this  doctrine  of  conversion  is  wholly  a  creation  of  the 
equitable  jurisprudence,  the  estates  or  interests  which  re- 
sult from  it  are  entirely  equitable  in  their  nature,  and 
equity  has  an  exclusive  jurisdiction  to  maintain  and  pro- 
tect such  interests,  whether  the  remedy  which  it  gives  in 
any  particular  case  consists  in  establishing  a  person's 
right  to  a  specific  piece  of  land,  or  merely  in  granting  a 
recovery  of  money .^ 

§  162.  Mortgages.^ — At  the  common  law  a  mortgage  of 
land  is  a  conditional  conveyance  of  the  legal  title,  subject 
to  be  defeated  by  the  mortgagor's  performing  the  condi- 
tion, paying  the  debt  on  the  very  day  stipulated.     If  the 

§  161,  1  Fletcher  v.  Ashburner,  1  Brown  Ch.  497,  per  Sir  Thomas 
Sewell,  M.  R. ;  Lechmere  v.  Carlisle,  3  P.  Wms.  223 ;  Wheldale  v.  Par- 
tridge, 5  Ves.  396,  8  Ves.  227;  Harcourt  v.  Seymour,  2  Sim.  N.  S.  12,  45; 
In  re  Pedder,  5  De  Gex,  M.  &  G.  890;  Craig  v.  Leslie,  3  Wheat.  564;  Peter 
V.  Beverly,  10  Pet.  534,  563;  Lorillard  v.  Coster,  5  Paige,  173,  218;  Gott 
V.  Cook,  7  Paige,  523,  534;  Kane  v.  Gott,  24  Wend.  641,  659,  660,  35 
Am.  Dec.  641;  Pratt  v.  Taliaferro,  3  Leigh,  419,  421,  427;  Siter  v.  Mc- 
Clanachan,  2  Gratt.  280;  Smith  v.  McCrary,  3  Ired.  Eq.  204,  207;  Samuel 
V.  Samuel's  Adm'rs,  4  B.  Mon.  245,  253;  Allison  v.  Wilson's  Ex'rs,  13 
Serg.  &  R.  330,  332. 

§161,   (a)  The    text    is    cited    in  §162,   (a)  Sections  162,    163,    aro 

Greenland    v.    Waddell,    116    N.    Y.  cited    in    Savings    &  Loan    See.    v. 

239,  15  Am.  St.  Rep.  400,  22  N.  E.  Davidson,     97     Fed.  696,     713,     38 

367.  C.  C.  A.  365. 


§  162  EQUITY    JURISPRUDENCE.  198 

condition  for  any  reason  was  not  performed  on  that  day, 
the  conveyance  ipso  facto  became  absolute,  the  mort- 
gagee's estate  became  a  perfect  legal  title,  in  fee,  for  life, 
or  for  years,  according  to  the  terms  of  the  deed,  and  all 
the  mortgagor's  interest  under  the  instrument  was  com- 
pletely gone.  In  other  words,  the  law  applied  to  a  mort- 
gage the  same  strict  rules  which  had  been  establishe'd  with 
regard  to  every  conditional  conveyance.  Side  by  side 
with  this  harsh  system  of  the  law,  the  court  of  chancery 
developed  another  theory,  which  may  justly  be  regarded 
as  the  most  magnificent  triumph  of  equity  jurisprudence 
over  the  injustice  of  the  common  law.  The  source  of  this 
theory  was  found  in  the  principle  that  equity  can  and  will 
relieve  against  legal  penalties  and  forfeitures,  whenever 
the  person  who  seeks  to  enforce  them  may  be  fairly  com- 
pensated by  an  award  of  money.  As  early  as  the  reign  of 
James  I.  the  court  of  chancery  had  begun  to  relieve  the 
mortgagor;  and  in  the  reign  of  Charles  I.  his  right  to  re- 
deem, after  a  failure  to  perform  the  condition,  had  become 
fully  recognized  as  a  part  of  the  equity  jurisprudence.^ 
This  equitable  right  'of  the  mortgagor  was  termed  his 
"equity  of  redemption";  that  is,  his  "right  in  equity  to 
redeem."  At  first  this  equity  of  redemption  was  re- 
garded as  a  mere  right  or  thing  in  action,  and  at  the  close 
of  the  reign  of  Charles  II.  it  was  said  to  be  a  mere  right 
to  recover  the  land  in  equity  after  a  failure  to  perform  the 
condition,  and  not  to  be  an  estate  in  the  land.^  This  nar- 
row view,  however,  was  soon  abandoned;  the  equitable 
theory  became  more  consistent  and  complete,  until  in  1737 
Lord  Hardwicke  laid  down  the  doctrine  as  already  estab- 
lished, and  which  has  since  been  regarded  as  the  very  cen- 
tral notion  of  the  equitable  theory,  that  an  equity  of  re- 
demption is  (in  equity)  an  estate  in  the  land,  which  may 
be  devised,  granted,  or  entailed  with  remainder;  that  it 

§  162,  1  Emanuel  College  v.  Evans,  1  Rep.  Chan.  18;  1  Jones  on  Mort- 
gages, §§6,  7;  Coote  on  Mortgages,  21. 

§  162,  2  Roscanick  v.  Barton,  1  Cas.  Chan.  217. 


199  THE    EXCLUSIVE    JURISDICTION.  §  163 

cannot  be  considered  as  a  mere  right  only,  but  such  an 
estate  whereof  there  may  be  a  seisin ;  and  that  the  person 
therefore  entitled  to  the  equity  of  redemption  is  consid- 
ered as  the  owner  of  the  land,  and  a  mortgage  in  fee  is 
considered  as  personal  assets. 3  It  should  be  carefully  ob- 
served that  by  this  theory  the  mortgagor's  estate  is  wholly 
an  equitable  one;  neither  in  equity  nor  at  law  is  he 
regarded  as  retaining  the  legal  estate.  Being  purely  a 
creation  of  equity,  it  fell,  of  course,  under  the  exclusive 
jurisdiction  of  chancery,  and  was  maintained  and  pro- 
tected by  means  of  the  remedy  obtained  in  a  suit  for  re- 
demption. This  double  mode  of  dealing  with  mortgages, 
the  legal,  the  only  one  recognized  and  administered  by  the 
courts  of  law,  and  the  equitable,  prevailing  alone  in  the 
court  of  chancery,  has  continued  to  exist  in  England  until 
the  present  day. 

§  163.  The  English  system  has  not  been  adopted  to  its 
full  extent  in  any  of  the  American  states.  Two  entirely 
different  methods  of  viewing  the  mortgage  have  become 
established  in  the  states  of  this  country,  and  the  states 
themselves  must  be  separated  into  two  great  classes  with 
respect  to  their  adoption  of  one  or  the  other  of  these 
methods :  1.  In  nearly  half  of  the  states  and  territories  the 
conflict  between  the  legal  and  the  equitable  -conceptions  is 
entirely  removed.  The  legal  theory  of  mortgages  has  been 
abandoned,  and  the  equity  theory  has  been  left  in  full 
force,  furnishing  a  single  and  uniform  collection  of  rules, 
recognized  and  administered,  so  far  as  necessary,  alike  by 
courts  of  law  and  of  equity.  The  mortgage  is  not  a  con- 
veyance; it  confers  no  estate  in  the  land  upon  the  mort- 
gagee. It  simpy  creates  a  lien  on  the  land  as  security  for 
the  debt  due.  The  mortgagor's  estate,  instead  of  being 
equitable,  an  equity  of  redemption,  is,  for  all  purposes, 
and  between  all  parties,  the  legal  estate,  but  encumbered 
by  the  lien  created  by  the  mortgage.     This  simple  concep- 

§  162,  3  Casborne  v.  Searfe,  1  Atk.  603. 


§  1G4  EQUITY    JURISPEXJDENCE.  200 

tion  is  carried  out  with  all  its  consequences,  not  only  as 
between  the  immediate  parties,  but  as  between  all  persons 
who  have  or  acquire  any  interest  in  or  claim  upon  the 
mortgage  itself  or  the  land  which  is  subject  to  the  mort- 
gage.i  2.  The  second  method,  which  prevails  in  the  resi- 
due of  the  states  and  territories,  may  be  briefly  described 
as  follows:  Between  the  immediate  parties — the  mort- 
gagor and  mortgagee  and  persons  holding  under  them — 
the  legal  conception  is  acknowledged,  and  the  legal  rights 
and  duties  flowing  from  the  mortgage  as  a  conveyance  of 
the  legal  estate  are  recognized  and  enforced  by  the  courts 
of  law.  But  as  between  the  mortgagor  and  his  repre- 
sentatives and  all  other  persons  not  holding  under  or 
through  the  mortgagee,  the  legal  conception  has  been  en- 
tirely abandoned,  and  the  equity  view  has  been  adopted  by 
all  courts,  of  law  as  well  as  of  equity.  Finally,  the  equity 
theory  exists,  is  in  fact  the  only  one  administered  by  courts 
of  equitable  jurisdiction,  and  is  applied  by  them  to  all  par- 
ties in  the  same  manner  and  to  the  same  extent  as  by  the 
court  of  chancery  in  England. ^ 

§  164.  Mortgage  of  Personal  Property. — While  a  mort- 
gage of  personal  property  is,  at  the  common  law,  a  condi- 
tional sale,  which  becomes  absolute,  passing  a  perfect  legal 
ownership  on  the  mortgagor's  failure  to  perform  the  condi- 
tion, yet  the  doctrine  is  well  settled  that  an  equity  of  re- 
demption exists;  and  the  equitable  jurisdiction  is  un- 
doubted to  relieve  the  mortgagor  by  a  suit  to  redeem,  even 
though  the  mortgagee  has  taken  possession  of  the  chattels, 

§  163,  1  This  method  has  been  adopted  in  the  following  states  and  terri- 
tories: California,  Colorado,  Dakota,  Florida,  Georgia,  Indiana,  Iowa, 
Kansas,  Louisiana,  Michigan,  Minnesota,  Nebraska,  Nevada,  New  York, 
Oregon,  South  Carolina,  Texas,  Utah,  and  Wisconsin. 

§  163,  2  The  second  method  has  been  adopted  in  the  following  states : 
Alabama,  Arkansas,  Connecticut,  Delaware,  Illinois,  Kentucky,  Maine, 
Maryland,  Massachusetts,  Mississippi,  Missouri,  New  Hampshire,  New 
Jersey,  North  Carolina,  Ohio,  Pennsylvania,  Rhode  Island,  Tennessee, 
Vermont,  Virginia,  and  West  Virginia. 


201  THE    EXCLUSIVE    JURISDICTION.  §  164 

at  any  time  before  the  mortgagor's  right  has  been  fore- 
closed by  a  piiblic  sale  of  the  mortgaged  property.*  Even 
after  such  a  sale,  if  there  has  been  any  element  of  bad  faith 
or  inequitable  conduct  on  the  part  of  the  mortgagee,  the 
mortgagor  may  still  sometimes  maintain  a  suit  for  an  ac- 
counting.! The  jurisdiction  also  extends  to  the  mort- 
gagee's interest,  which  may  be  protected  and  enforced  by 
a  suit  brought  to  foreclose  the  mortgagor's  right  of  re- 
demption, and  to  sell  the  mortgaged  property,  similar  to 
the  suit  so  common  in  the  United  States  for  the  foreclos- 
ure of  a  mortgage  of  land.^^  A  like  jurisdiction  exists 
over  pledges  of  chattels  or  of  things  in  action ;  the  pledgee 
may  enforce  his  security  by  a  suit  for  a  foreclosure  and 
sale. 3  c  Under  special  circumstances  the  pledgor  may 
maintain  an  equitable  action  for  a  redemption.'*  In  some 
of  the  states  the  common-law  view  of  the  chattel  mortgage 
as  a  conditional  sale  has  been  totally  abandoned ;  the  mort- 
gage itself  has  been  assimilated  to  the  mortgage  of  land 
as  only  creating  a  lien, — a  mere  hypothecation, — the  legal 

§164,  iHart  v.  Ten  Eyck,  2  Jolms.  Ch.  100,  101;  Stoddard  v.  Deni- 
son,  7  Abb.  Pr.  N.  S.  309;  Flanders  v.  Chamberlain,  24  Mich.  305;  Hey- 
land  V.  Badger,  35  Cal.  404. 

§  164,  2  Hart  v.  Ten  Eyck,  2  Johns.  Ch.  100 ;  Lansing  v.  Goelet,  9  Cow. 
372,  per  Jones,  C. ;  Charter  v.  Stevens,  3  Denio,  33,  45  Am.  Dec,  444; 
Huntington  v.  Mather,  2  Barb.  538 ;  Mattison  v.  Baucus,  1  N.  Y.  296. 

§  164,  3  Ex  parte  Mountford,  14  Ves.  606 ;  Freeman  v.  Freeman,  17 
N.  J.  Eq.  44;  Dnpuy  v.  Gibson,  36  111.  197;  Donohue  v.  Gamble,  38  Cal. 
340;  Civ.  Code  of  Cal.,  §  3011. 

§  164,  4  Jones  v.  Smith,  2  Ves.  372;  Bartlett  v.  Johnson,  9  Allen,  530; 
Hasbrouck  v.  Vandervoort,  4  Sand.  74. 

§  164,  (a)   The    text    is    cited    to  Cleghorn  v.  Minnesota  T.  I.  &  T.  Co., 

this   effect   in   Lang   v.   Thacher,   48  57  Minn.  341,  47  Am.  St.  Rep.  615, 

App.  Div.  (N.  Y.)  313,  62  N.  Y.  Supp.  59  N.  W.  320.     This  section  of  the 

958.  text   was   cited   in   Knapp,   Stout   & 

§164,  (b)  This  paragraph  of  the  Co.    v.    McCaffrey,    178    111.    107,    69 

text  is  cited  in  M'Cormick  v.  Hart-  Am.  St.  Rep.  290,  52  N.  E.  898.  and 

ley,  107  Ind.  248,  6  N.  E.  357  (juris-  the    principle    applied,    by    analogy, 

diction    to    protect    the    mortgagee's  to   the   enforcement   in   equity   of   a 

interest  before  the  debt  is  due).  bailee's  lien. 

§164,   (c)   Cited   to   this   effect   in 


§  §  1G5,  166  EQUITY    JURISPEUDENCB.  202 

ownership  with  all  its  incidents,  including  the  right  of  pos- 
session, being  left  in  the  mortgagor  until  the  lien  is  en- 
forced and  the  mortgagor's  interest  extinguished,  either 
by  means  of  an  equitable  suit  or  by  a  public  sale.^ 

§  165.  Equitable  Liens,  analogous  to  mortgages,  con- 
sidered from  the  purely  equitable  point  of  view,  are  the 
class  of  interest  embraced  under  the  denomination  of 
''equitable  liens."  An  equitable  lien  is  not  an  estate  or 
property  in  the  thing  itself,  nor  a  right  to  recover  the 
thing, — that  is,  a  right  which  may  be  the  basis  of  a  pos- 
sessory action;  it  is  neither  a  jiis  ad  rem  nor  a  ju^  in  re.^ 
It  is  simply  a  right  of  a  special  nature  over  the  thing, 
which  constitutes  a  charge  or  encumbrance  upon  the  thing, 
so  that  the  very  thing  itself  may  be  proceeded  against  in 
an  equitable  action,  and  either  sold  or  sequestered  under  a 
judicial  decree,  and  its  proceeds  in  the  one  case,  or  its 
rents  and  profits  in  the  other,  applied  upon  the  demand  of 
the  party  in  whose  favor  the  lien  exists.  It  is  the  very 
essence  of  this  conception,  that  while  the  lien  continues, 
the  possession  of  the  thing  remains  with  the  debtor  or  per- 
son who  holds  the  proprietary  interest  subject  to  the 
encumbrance.2  a 

§  166.  The  doctrine  of  equitable  liens  is  one  of  great 
importance,  and  of  wide  application  in  administering  the 
remedies  peculiar  to  equity  jurisprudence,  and  a  brief  ex- 
planation of  the  foundation  and  reasons  of  the  jurisdiction 
is  essential  to  a  full  understanding  of  the  subject.     It  is 

§  164,  5  As,  for  example,  in  California:  Civ.  Code,  §§  2920,  2923,  2927, 
2931,  2936,  2967-2970,  3000-3002. 

§  165,  1  See  Peek  v.  Jenness,  7  How.  620,  per  Grier,  J. 

§  165,  2  Brace  v.  Duchess  of  Marlborough,  2  P.  Wms.  491 ;  Ex  parte 
Knott,  11  Ves.  617. 

§  165,   (a)   This  paragraph  is  cited  Barlow   Drug  Co.,   194   Ala.   507,   69 

in   American   Can   Co.   v.   Erie   Pre-  South.    931    (foreclosure    of    seller's 

serving  Co.   (C.  C.  N.  Y.),  171  Fed.  lien     where     contract     provides     no 

548.     Sections   165-167   are   cited  in  method    of    enforcing) ;     Boyett    v. 

Averyt  Drug  Co.  v.  Ely-Robertson-  Hahn  (Ala.),  73  South.  79. 


203  THE    EXCLUSIVE    JURISDICTION.  §  16G 

sometimes,  although  unnecessarily  and  even  incorrectly  in 
my  opinion,  spoken  of  as  a  branch  of  implied  trusts;  but 
it  is  more  accurate  to  describe  these  liens  as  analogous  to 
trusts ;  for  although  they  have  some  similar  features,  they 
are  unlike  in  their  essential  elements.  The  common-law 
remedies  upon  all  contracts,  except  those  which  transfer  a 
legal  estate  or  property,  such  as  conveyances  of  land  and 
sales  or  bailments  of  chattels,  are  always  mere  recoveries 
of  money;  the  judgments  are  wholly  personal,  in  ancient 
times  were  enforced  against  the  person  of  the  debtor,  by 
his  imprisonment  until  he  voluntarily  paid  the  amount,  and 
in  modern  times,  against  the  property  generally  of  the 
judgment  debtor,  by  means  of  an  execution.  This  species 
of  remedy  is  seldom  granted  by  equity,  and  is  opposed  to 
its  general  theory.  The  remedies  of  equity  are  as  a  class 
specific.  Although  it  is  commonly  said  of  them  that  they 
are  not  m  rem,  because  they  do  not  operate  by  the  in- 
herent force  of  the  decree  in  an  equitable  suit  to  change 
or  to  transfer  the  title  or  estate  in  controversy,  yet  these 
remedies  are,  as  a  general  rule,  directed  against  some  spe- 
cific thing;  they  give  or  enforce  a  right  to  or  over  some 
particular  identified  thing,  land,  or  personal  property, 
or  a  fund,  rather  than  a  right  to  recover  a  sum  of  money 
generally  out  of  the  defendant's  assets.  Eemedies  in 
equity,  as  well  as  at  law,  require  some  primary  right  or  in- 
terest of  the  plaintiff,  which  shall  be  maintained,  enforced, 
or  redressed  thereby.  When  equity  has  jurisdiction  to 
enforce  rights  and  obligations  growing  out  of  an  executory 
contract,  this  equitable  theory  of  remedies  cannot  be  car- 
ried out,  unless  the  notion  is  admitted  that  the  contract 
creates  some  right  or  interest  in  or  over  specific  property, 
which  the  decree  of  the  court  can  lay  hold  of,  and  by  means 
of  which  the  equitable  relief  can  be  made  efficient.  The 
doctrine  of  ''equitable  liens"  supplies  this  necessary  ele- 
ment, and  it  was  introduced  for  the  sole  purpose  of  fur- 
nishing a  ground  for  the  specific  remedies  which  equity 
confers,  operating  upon  particular  identified  property,  in- 


§  167  EQUITY    JURISPRUDENCE.  204 

stead  of  tlie  general  pecuniary  recoveries  granted  by 
courts  of  law.  It  follows,  therefore,  that  in  a  large  class 
of  executory  contracts,  express  or  implied,  which  the  law 
regards  as  creating  no  property  right  nor  interest  analo- 
gous to  property,  but  only  a  mere  personal  right  and 
obligation,  equity  recognizes,  in  addition  to  the  ohligation, 
a  peculiar  right  over  the  thing  with  which  the  contract 
deals,  which  it  calls  a  ''lien,"  and  which,  though  not  prop- 
erty, is  analogous  to  property,  and  by  means  of  which 
the  plaintiff  is  enabled  to  follow  the  identical  thing,  and 
to  enforce  the  defendant's  obligation  by  a  remedy  which 
operates  directly  upon  that  thing.^ 

§  167.  These  equitable  liens  may  be  created  by  express 
executory  contracts  relating  to  specific  property  then  exist- 
ing,i  or  property  to  be  afterward  acquired  ;2  and  some- 
times by  implied  contracts,  upon  the  maxim  that  he  who 
seeks  the  aid  of  equity  in  enforcing  some  claim  must  him- 
self do  equity.3  The  following  are  some  of  the  important 
kinds  of  equitable  liens  which  are  recognized  as  falling 
under  this  branch  of  the  jurisdiction :  Those  resulting  from 

§  167,  1  Ex  parte  Wills,  1  Ves.  162,  2  Cox,  233 ;  Card  v.  Jaffray,  2 
Sehoales  &  L.  379;  In  re  Howe,  1  Paige,  125,  19  Am.  Dec.  395;  Chase 
V.  Peck,  21  N.  Y.  581;  Daggett  v.  Rankin,  31  Cal.  321,  326;  Love  v.  Sierra 
Nevada  Co.,  32  Cal.  639,  652,  653,  91  Am.  Dec.  602;  Pinch  v.  Anthony, 
8  Allen,  536;  Adams  v.  Johnson,  41  Miss.  258;  Morrow  v.  Turney,  35 
Ala.  131. 

§  167,  2  Holroyd  v.  Marshall,  10  H.  L.  Cas.  191 ;  Wellesley  v.  Wellesley, 
4  Mylne  &  C.  561,  579,  per  Lord  Cottenham;  Metcalfe  v.  Archb.  of  York, 
6  Sim.  224,  1  Mylne  &  C.  547,  556;  Lyde  v.  Minn,  4  Sim.  505,  1  Mylne  & 
K.  683;  Otis  V.  Sill,  8  Barb.  102. 

§  167,  3  Lake  v.  Gibson,  1  Abr.  Cas.  Eq.  290,  pi.  3 ;  Lake  v.  Craddock, 
3  P.  Wms.  158,  1  Lead.  Cas.  Eq.  177,  179;  Gladstone  v.  Birley,  2  Mer. 
403;  Bright  v.  Boyd,  1  Story,  478,  2  Story,  605;  Miner  v.  Beekman,  50 
N.  Y.  337;  Smith  v.  Drake,  23  N.  J.  Eq.  302;  McLaughlin  v.  Barnum,  31 
Md.  425 ;  Sale  v.  Crutchfield,  8  Bush,  636. 

•     §  166,   (a)  The  text  is  quoted  in  Bisby  v.  Quinby,  92  Kan.  86,  140  Pac. 
635. 


205  THE    EXCLUSIVE    JURISDICTION.  §  167 

charges  on  property  by  will  or  by  deed;  '*  the  grantor's  lieu 
on  land  conveyed  for  the  unpaid  price ;^  the  vendee's  lien 
for  the  money  paid  in  a  contract  for  the  purchase  of 
land; 6^  the  vendor's  lien  for  the  purchase  price  in  the 
same  contract;"^  the  grantor's  lien  for  unpaid  price  created 
by  express  reservation  in  a  deed  of  conveyance;^  the  lien 
in  favor  of  a  lender,  created  by  a  deposit  of  title  deeds  ;^ 
various  statutory  liens.^  In  addition  to  the  liens  above 
mentioned,  which  belong  to  the  general  equitable  jurispru- 
dence, the  legislation  of  many  states  has  created  or  allowed 
other  liens,  which  often  come  within  the  equity  jurisdiction, 

§  167,  4  King  V.  Denison,  1  Ves.  &  B.  272,  276 ;  Hill  v.  Bishop  of  Lon- 
don, 1  Atk.  620;  Craig  v.  Leslie,  3  Wheat.  582;  Gardner  v.  Gardner,  3 
Mason,  178. 

§  167,  5  Mackreth  v.  Symmons,  15  Ves.  329,  1  Lead.  Cas.  Eq.  289 ; 
Blackburn  v.  Gregson,  1  Brown  Ch.  420;  Rose  v.  Watson,  10  H.  L.  Cas. 
672 ;  Smith  v,  Evans,  28  Beav.  59.  This  lien  is  established  in  a  large  num- 
ber of  the  states,  but  not  in  all. 

§  167,  6  Cator  v.  Earl  of  Pembroke,  1  Brown  Ch.  301;  Rose  v.  Watson, 
10  H.  L.  Cas.  672;  Wythes  v.  Lee,  3  Drew.  396;  Lane  v.  Ludlow,  6 
Paige,  316,  note;  Chase  v.  Peck,  21  N.  Y.  585;  Wickman  v.  Robinson,  14 
Wis.  494,  80  Am.  Dec.  789;  Stewart  v.  Wood,  63  Mo.  252;  Willis  v.  Searcy, 

49  Ala.  222. 

§167,  7  Smith  v.  Hibbard,  Dick.  730;  Smith  v.  Evans,  28  Beav.  59; 
Haughwout  V.  Murphy,  22  N.  J.  Eq.  531;  Hall  v.  Jones,  21  Md.  439; 
Yancy  v.  Mauck,  15  Gratt.  300;  Hill  v.  Grigsby,  32  Cal.  55;  Smith  v.  Row- 
land, 13  Kan.  245. 

§  167,  8  This  species  of  lien,  peculiar  to  the  United  States,  is  fully 
established  in  several  of  the  states;  Heist  v.  Baker,  49  Pa.  St.  9;  Carpenter 
V.  Mitchell,  54  111.  126;  Markoe  v.  Andras,  67  111.  34;  Davis  v.  Hamilton, 

50  Miss.  213;  Stratton  v.  Gold,  40  Miss.  781;  White  v.  Downs,  40  Tex. 
226;  King  v.  Young  Men's  Ass'n,  1  Woods,  386. 

§  167,  9  This  lien  is  very  common  in  England,  and  has  been  recognized 
in  some  of  the  states:  Russell  v.  Russell,  1  Brown  Ch.  269;  Ex  parte 
Hooper,  1  Mer.  7;  Parker  v.  Housefield,  2  Mylne  &  K.  419;  Whitbread  v. 
Jordan,  1  Younge  &  C.  303. 

§  167,  (a)  The    text    is    cited    in  &  Lancashire  Fire  Ins.  Co.,  138  Cal. 

Stults  v.  Brown,  112  Ind.  370,  2  Am.  257,  71  Pac.  334   (action  to  enforce 

St.  Rep.  190,  14  N.  E.  230.  a  judgment  lien  against  property  of 

§  167,   (b)   The    text    is    cited    in  decedent), 
Hibernia  Sav.  &  L.  See.  v.  London 


§  168  EQUITY    JURISPRUDENCE.  206 

in  respect,  at  least,  to  their  means  of  enforcement.  The 
so-called  ** mechanics'  liens"  may  be  taken  as  the  type  and 
illustration  of  this  class.® 

§  168.  Equitable  Estate  or  Interest  Arising  from  an  As- 
signment of  Things  in  Action,  Possibilities,  Contingencies, 
or  Expectancies,  and  from  an  Equitable  Assignment  of  a 
Fund. — By  the  ancient  common  law,  things  in  action,  pos- 
sibilities, expectancies,  and  the  like,  were  not  assignable; 
an  assignee  thereof  acquired  no  right  which  was  recog- 
nized by  courts  of  law.  Equity,  however,  has  always  held 
that  the  assignment  of  a  thing  in  action  for  a  valuable  con- 
sideration should  be  enforced  at  the  suit  of  the  assignee; 
and  has  also  given  effect  to  assignments  of  every  kind  of 
future  and  contingent  interests  and  possibilities  in  real 
and  personal  property,  when  made  upon  a  valuable  con- 
sideration. ^  ^  As  soon  as  the  assigned  expectancy  or  pos- 
sibility has  fallen  into  possession,  the  assignment  will  be 
enforced.2  It  followed,  therefore,  that  the  assignee  of  a 
thing  in  action  acquired  at  once  an  equitable  ownership 
therein,  as  far  as  it  is  possible  to  predicate  property  or 
ownership  of  such  a  species  of  right;  while  the  assignee 
of  an  expectancy,  possibility,  or  contingency  acquired  at 
once  a  present  equitable  right  over  the  future  proceeds  of 
the  expectancy,  possibility,  or  contingency,  which  was  of 

§  168,  1  Warmstrey  v.  Lady  Tanfield,  1  Ch.  Rep.  16;  Wright  v.  Wright, 
1  Ves.  Sen.  411;  Hobson  v.  Trevor,  2  P.  Wms.  191;  Bennett  v.  Cooper, 
9  Beav.  252;  Lindsay  v.  Gibbs,  22  Beav.  522;  Spragg  v.  Binkes,  5  Ves. 
588 ;  Stolfes  v.  Holden,  1  Keen,  152,  153 ;  Jewson  v.  Moulson,  2  Atk.  421. 

§  168,  2  Holroyd  v.  Marshall,  10  H.  L.  Cas.  191. 

§  167,   (c)   The    text    is    cited    in  ing  that  as  the  lien  was  statutory, 

Gilchrist  v.   Helena   Hot   Springs   &  and  not  equitable,  the  "clean  hands" 

Smelter    R.    Co.,    58    Fed.    708,    710,  maxim   did  not  apply. 
holding  that  equity  has  jurisdiction  §  168,   (a)   The    text    is    cited    to 

to  enforce  statutory  liens  when  the  this  effect  in  In  re  Garcelon,  104  Cal. 

statute  itself  provides  no  method  of  570,  32  L.  R.  A.  595,  43  Am.  St.  Rep. 

enforcement.     Sections    165-167    are  134,  38  Pae.  414;  Hale  v.  Hollon,  14 

cited    in    Schmulbach    v.    Caldwell.  Tex.  Civ.  App.  96,  35  S.  W.  843,  36 

196  Fed.  16,  115  C.  C.  A.  650,  hold-  S.  W.  288. 


207  THE    EXCLUSIVE    JUEISDICTION.  §  168 

such  a  certain  and  fixed  nature  that  it  was  sure  to  ripen 
into  an  ordinary  equitable  property  right  over  those  pro- 
ceeds, as  soon  as  they  came  into  existence  by  a  trans- 
formation of  the  possibility  or  contingency  into  an  inter- 
est in  possession.  There  was  an  equitable  ownership  or 
property  in  abeyance,  so  to  speak,  which  finally  changed 
into  an  absolute  property  upon  the  happening  of  the 
future  event.  Equity  permitted  the  creation  and  transfer 
of  such  an  ownership.^  At  an  early  day,  this  species  of 
equitable  ownership  arising  from  assignments  prohibited 
by  the  common  law  was  very  important,  and  was  the  occa- 
sion of  an  extensive  branch  of  the  equitable  jurisdiction. 
This  special  jurisdiction  has,  however,  been  greatly  cur- 
tailed. Modern  statutes,  both  in  England  and  in  the 
American  states,  permit,  with  certain  well-defined  excep- 
tions, things  in  action,  possibilities,  expectancies,  and  con- 
tingencies to  be  assigned,  and  the  assignee  to  sue  there- 
upon in  his  own  name.  As  far  as  this  legislation  has  gone, 
it  has,  in  effect,  turned  the  equitable  right  or  ownership  of 
the  assignee  into  a  legal  one,  and  has  thus  removed  the 
very  foundation  of  the  equitable  jurisdiction  over  the 
subject-matter.  The  jurisdiction  is  therefore  abrogated, 
except  so  far  as  it  is  preserved  by  the  operation  of  the 
general  principle,  that  where  the  jurisdiction  of  equity  has 
been  established  over  any  given  subject,  it  is  not  abolished 
by  subsequent  statutes  conferring  jurisdiction  over  the 
same  subject  upon  the  courts  of  law.  Whatever  may  be 
the  effect  of  these  statutes  in  abridging,  or  rather  in  re- 
moving occasion  for,  the  jurisdiction  of  equity,  it  is  plain 
that  the  jurisdiction  must  still  exist  in  the  cases  where  a 
thing  in  action  or  demand  purely  equitable  in  its  nature  is 
assigned,  and  where  the  assignment  itself  is  equitable, — 
that  is,  does  not  operate  as  an  assignment  at  law, — and 
where  any  species  of  possibility  or  expectancy  not  within 
the  scope  of  the  statutes  is  transferred. ^ 

§  168,    (b)    The   text  is   quoted  in  §  168,   (c)   The    text    is    quoted    in 

Stott  V.  Praney,  20  Or.  410,  23  Am.       Stott  v.  Franey,  20  Or.  410,  23  Am. 
St,  Rep.  132,  26  Pac.  271.  St.  Rep.  132,  26  Pae.  271. 


§  169  EQUITY    JURISPRUDENCE.  208 

§  169.  Among  these  cases  which  are  untouched  by  the 
legislation,  and  over  which  the  exclusive  jurisdiction  of 
equity  still  continues  unabridged,  is  the  equitable  assign- 
ment of  a  specific  fund  which  is  in  the  hands  of  a  third 
person,  an  assignment  which  does  not  operate  at  law,  and 
therefore  creates  no  legal  rights  of  property  in  the  as- 
signee. If  A  has  a  specific  fund  in  the  hands  of  B,  or  in 
other  words,  if  B  is  a  depositary  or  otherwise  holds  a 
specific  sum  of  money  which  he  is  bound  to  pay  to  A,  and 
if  A  agrees  with  C  that  the  money  shall  be  paid  to  C,  or 
assigns  it  to  C,  or  gives  to  C  an  order  upon  B  for  it,  the 
agreement,  assignment,  or  order  creates  an  equitable 
ownership  of  the  fund  in  the  assignee  C,  so  that  he  can  re- 
cover it  by  a  suit  in  equity,  and  it  is  not  necessary  that  B 
should  consent  or  promise  to  hold  it  for  or  pay  it  to  such 
assignee.  1  It  is  not  necessary  that  the  entire  debt  or  fund 
should  be  thus  assigned;  the  same  doctrine  applies  to  the 
assignment  of  a  definite  portion  of  it.2» 

§  169,  1  Rodick  v.  Gandell,  1  De  Gex,  M.  &  G.  763;  Ex  parte  Imbert, 
1  De  Gex  &  J.  152 ;  Jones  v.  Farrell,  1  De  Gex  &  J.  208 ;  Gurnell  v.  Gard- 
ner, 9  Jur.,  N.  S.,  1220;  Ex  parte  South,  3  Swanst.  393;  Burn  v.  Car- 
valho,  4  Mylne  &  C.  702;  Lett  v.  Morris,  4  Sim.  607;  Watson  v.  Duke  of 
Wellington,  1  Russ.  &  M.  605;  Yeates  v.  Groves,  1  Ves.  281;  Lepard  v. 
Vernon,  2  Ves.  &  B.  51;  Ex  parte  Alderson,  1  Madd.  53;  Collyer  v.  Fal- 
lon, 1  Turn.  &  R.  470,  475;  Adams  v.  Claxon,  6  Ves.  230;  Row  v.  Dawson, 
1  Ves.  Sen.  331 ;  Freddy  v.  Rose,  3  Mer.  86,  102 ;  Ex  parte  Carruthers,  3 
De  Gex  &  S.  570;  Malcolm  v.  Scott,  3  Hare,  39;  Mandeville  v.  Welch,  5 
Wheat.  277,  286;  Tiernan  v.  Jackson,  5  Pet.  598;  Gibson  v.  Finley,  4 
Md.  Ch.  75;  Wheatley  v.  Strobe,  12  Cal.  92,  98,  73  Am.  Dec.  522;  Walker 
V.  Mauro,  18  Mo.  564;  Shaver  v.  Western  Union  Tel.  Co.,  57  N.  Y.  459, 
464. 

§  169,  2  Watson  v.  Duke  of  Welling-ton,  1  Russ.  &  M.  602,  605,  per  Sir 
John  Leach;  Lett  v.  Morris,  4  Sim.  607;  Smith  v.  Everett,  4  Brown  Ch. 
64;  Morton  v.  Naylor,  1  Hill,  583;  Grain  v.  Aldrieh,  38  Cal.  514,  99 
Am.  Dec.  423. 

§169,  (a)  The  text  is  cited  and  610;  Rivers  v.  A.  &  C.  Wright  Co., 
followed   in   The   Elmbank,  72  Fed.       117  Ga.  81,  43  S.  E.  499. 


209  THE    EXCLUSIVE    JURISDICTION.  §  170 

§  170.  Exclusively  Equitable  Remedies.^ — Having  thus 
explained  the  equitable  primarj^  rights,  estates,  interests, 
and  charges  in  and  upon  property  over  which  the  exclusive 
jurisdiction  of  equity  extends,  I  now  proceed  to  enumer- 
ate the  remedies  which  are  wholly  equitable,  administered 
by  courts  of  equity  alone,  and  which  therefore  constitute 
the  other  department  of  the  exclusive  jurisdiction.  There 
are  certain  general  qualities  belonging  to  all  these  rem- 
edies, which  should  be  clearly  and  correctly  understood; 
otherwise  our  notions  of  the  remedial  functions  of  equity 
will  be  partial,  confused,  and  even  erroneous.  1.  These 
exclusive  remedies  may  be  granted  in  order  to  protect, 
maintain,  or  enforce  primary  rights,  estates,  or  interests 
which  are  legal  as  well  as  those  which  are  equitable;  they 
are  not  administered  in  behalf  of  equitable  substantive 
rights  alone.  As  illustrations,  an  injunction  is  often  given 
to  prevent  the  invasion  of  a  legal  ownership  or  interest, 
a  decree  quieting  title  is  often  rendered  to  establish  an 
existing  legal  estate,  and  the  like.^  And  in  many  in- 
stances where  the  existing  primary  right,  estate,  or  inter- 
est of  the  complainant  is  equitable,  the  very  object  and 
effect  of  the  remedy  is  to  clothe  him  with  the  correspond- 
ing legal  right,  estate,  or  interest;  as,  for  example,  when 
the  beneficiary  under  a  constructive  trust,  or  the  vendee 
under  a  contract  for  the  sale  of  land,  obtains  a  decree 
directing  a  conveyance  of  the  legal  title.  2.  Although  it 
was  said  in  the  earliest  days  of  the  jurisdiction  of  chan- 
cery, and  has  been  constantly  repeated  by  writers  and 
judges  to  the  present  time,  that  equitable  remedies  act 
wholly  on  the  person,  in  personam,  and  not  upon  property, 
in  rem,  the  exact  meaning  and  limits  of  this  rule  must  be 
accurately  understood,  or  else  it  will  be  very  misleading, 
and  will  entirely  misrepresent  the  theory  of  the  equity 
remedial  system.    It  has  no  significance  beyond  the  fact 

§  170,    (a)    Sections    170-172    are  §170,  (b)  The   text   is   quoted   in 

cited    in   McCracken    v.    McBee,    96  Curtiee  v.  Dixon,  72  N.  H.  393,  &2 

Ark.  251,  131  S.  W.  450.  Atl.  492. 
1—14 


§  170  EQUITY    JURISPRUDENCE.  210 

that,  according  to  the  practice  adopted  by  the  court  of 
chancery  from  prudential  motives,  the  decrees  of  the  court 
did  not,  so  to  speak,  execute  themselves  by  divesting  the 
defendant  of  estates  or  interests,  and  vesting  the  same  in 
the  plaintiff;  defendants  were  ordered  to  do  specified  acts, 
such  as  the  execution  of  conveyances,  the  delivery  up  and 
cancellation  of  instruments,  and  the  like,  which  would, 
when  done,  establish,  perfect,  and  secure  the  rights  ad- 
judged to  be  held  by  the  plaintiffs;  the  decree  that  a  con- 
veyance of  land  should  be  made  by  the  defendant  to  the 
plaintiff  did  not  of  itself  operate  as  a  title,  did  not  of  itself 
transfer  the  estate  to  the  plaintiff;  nor  was  an  officer  of 
the  court  authorized  to  execute  the  conveyance ;  the  defend- 
ant himself  was  ordered  to  do  the  act,  and  he  alone  could 
perform  it;  his  refusal  simply  brought  on  him  the  punish- 
ment of  fine  and  imprisonment  until  he  consented  to  obey.*' 
This  ancient  quality  in  the  operation  of  equitable  rem- 
edies has  been  greatly  modified  by  various  statutes  in  the 
United  States,  which,  in  some  instances,  provide  that  a  de- 
cree establishing  an  estate,  interest  or  right  of  property 
in  the  plaintiff  shall  execute  itself,  shall  be  of  itself  a  muni- 
ment of  title,  by  divesting  the  defendant  of  the  interest 
and  vesting  the  same  in  the  plaintiff,  without  any  convey- 
ance or  other  instrument  of  transfer.  The  decree  alone, 
being  on  record,  operates  as  a  sufficient  security  of  the 
plaintiff's  rights  as  adjudged.  In  other  instances,  an  offi- 
cer of  the  court,  commissioner,  master,  or  referee  is  au- 
thorized to  carry  out  the  provisions  of  the  decree  by 
executing  the  necessary  instruments,  which  are  thereupon 
the  plaintiff's  muniments  of  title,  with  the  same  effect  as 
though  they  had  been  executed  by  the  defendant  himself. 
Finally,  in  many  instances,  the  decree  must,  from  the 
nature  of  the  remedy, — e.  g.,  an  injunction, — act  directly 
against  the  defendant  personally,  and  order  him  to  do  or 
to  refrain  from  certain  acts.     The  maxim  referred  to  has 

§  170,   (c)   The     text    is    cited    in       53,  138  N.  W.  94;  Collins  v.  Bradley 
McMillan    v.  Barber    Asphalt    Pav-       Co.,  227  Fed.  199. 
ing  Co.,  151  Wis.  48,  Ami.  Cas.  1914B, 


211  THE    EXCLUSIVE    JURISDICTION.  §  170 

therefore  a  very  limited  application.  When  we  turn  from 
this  mere  external  manner  in  which  equitable  remedies 
were  enforced  according  to  the  original  chancery  procedure 
to  the  essential,  and  so  to  speak  internal,  nature  and  quali- 
ties of  the  remedies  themselves,  instead  of  their  being 
merely  personal,  it  is  one  of  the  distinctive  and  central 
principles  of  the  equity  remedial  system  that  it  deals  with 
property  rights, — estates,  interests,  liens, — rather  than 
with  the  mere  personal  rights  and  obligations  of  the  liti- 
gant parties.  This  tendency  of  equity  to  base  its  reme- 
dies upon  the  rights  of  property,  in  their  various  grades, 
from  complete  estates  to  liens  or  charges,  is  exhibited  in 
the  clearest  manner  in  all  its  suits  brought  to  enforce  the 
rights  and  duties  growing  out  of  contracts.  Although  the 
contract  is  executory,  even  though  it  stipulates  only  with 
respect  to  things  not  yet  in  existence, — things  to  be  ac- 
quired in  future, — the  remedial  right  is  worked  out  b}"  con- 
ceiving of  a  present  ownership,  interest,  lien,  or  charge, 
as  arising  from  the  executory  provisions,  or  a  present  pos- 
sibility which  will  ripen  into  such  an  interest,  and  by 
establishing  this  proprietary  right,  protecting  and  en- 
forcing it.  The  decree,  with  a  few  exceptional  cases, 
passes  over  the  personal  rights  of  the  plaintiff,  and  the 
personal  obligations  of  the  defendant,  deals  with  rights  or 
interests  in  property,  and  shapes  its  relief  by  conferring 
rights,  or  imposing  duties  growing  out  of  or  connected 
with  some  grade  of  property.  Even  when  the  executory 
contract  creates  what  at  law  would  be  a  debt,  and  when 
the  recovery  at  law  would  be  a  general  pecuniary  judg- 
ment, the  equitable  remedy  views  this  debt  as  an  existing 
fund,  and  awards  its  relief  in  the  form  of  an  ownership 
of  or  lien  upon  that  fund.  A  general  pecuniary  judgment 
to  be  recovered  from  the  debtor's  assets  at  large — as  an 
award  of  damages — ^is  only  granted  by  a  court  of  equity 
under  very  exceptional  circumstances.^     3.  Another  qual- 

§  170,  1  The  same  conception  is  shown  in  the  jurisdiction  which  equity 
exercises  over  the  persons  of  those  who  are  non  sui  juris,  such  as  infants, 


§  170  EQUITY    JURISPRUDENCE.  212 

ity  of  the  distinctively  equitable  remedies,  connected  with 
and  perhaps  growing  out  of  the  one  last  mentioned,  is  their 
specific  character,  both  with  respect  to  substance  and  form. 
Except  in  actions  to  recover  possession  of  land  or  of  chat- 
tels ("action  of  right,"  "ejectment,"  or  "replevin"),  the 
legal  remedies  by  action  are  all  general  recoveries  of  speci- 
fied sums  of  money,  which  may  be  collected  by  execution 
out  of  any  property  of  the  debtor  not  exempted.  The 
equitable  remedies,  with  a  few  exceptions,  are  specific; 
deal  with  specific  things,  land,  chattels,  choses  in  actions, 
funds;  establish  specific  rights,  estates,  interests,  liens, 
and  charges  in  or  over  these  things;  and  direct  specific 
acts  to  be  done  or  omitted  with  respect  to  these  things,  for 
the  purpose  of  enforcing  the  rights  and  duties  thus  de- 
clared. Even  when  the  controversy  is  concerning  pecuni- 
ary claims  and  obligations,  and  the  final  relief  is  wholly 
pecuniary,  the  equitable  remedies  are  administered  by  re- 
garding the  subject-matter  as  a  specific  fund,  and  by  ad- 
judging such  fund  to  its  single  owner,  or  by  apportioning 
it  among  the  several  claimants.  It  is  the  distinctive  fea- 
ture of  the  system,  which  gives  it  a  superior  efficacy  over 
the  legal  methods,  that  it  ascertains  a  rightful  claimant's 
interest  in  or  over  a  specific  thing,  land,  chattels,  choses  in 
action,  debts,  and  even  money  in  the  form  of  a  fund,  and 
follows  it  through  the  hands  of  successive  possessors  as 
long  as  it  can  be  identified.  The  two  qualities  which  I 
have  thus  described,  that  equitable  remedies  deal  with 
property  rights  rather  than  with  personal  rights  and  obli- 
gations, and  that  they  are  specific  in  their  nature,  are  the 
peculiar  and  important  features  of  the  system,  and  give  it 
the  power  of  expansion  and  of  application  to  an  unlimited 
variety   of  circumstances,  which   enables   equity   to   keep 

lunatics,  etc.  Although  the  jurisdiction,  when  existing,  extends  over  the 
persons,  the  fact  upon  which  it  rests,  and  which  is  the  necessary*  occasion 
for  its  exercise,  is  the  existence  of  property  belonging  to  the  person.  An 
infant,  for  example,  cannot  be  made  a  ward  of  the  court  merely  because 
he  is  an  infant,  but  because  he  is  an  infant  possessing  property  which  the 
court  can  administer. 


213  THE    EXCLUSIVE    JURISDICTION".  §  171 

abreast  with  the  progress  and  changing  wants  of  society. 
4.  Another  quality  of  equitable  remedies  is  their  unlim- 
ited variety  of  form.  It  is  absolutely  impossible  to  enu- 
merate all  the  special  kinds  of  relief  which  may  be  granted, 
or  to  place  any  bounds  to  the  power  of  the  courts  in  shap- 
ing the  relief  in  accordance  with  the  circumstances  of  par- 
ticular cases.  As  the  nature  and  incidents  of  proprietary 
rights  and  interests,  and  of  the  circumstances  attending 
them,  and  of  the  relations  arising  from  them,  are  prac- 
tically unlimited,  so  are  the  kinds  and  forms  of  specific 
relief  applicable  to  these  circumstances  and  relations.*^ 
The  ordinary  remedies,  however,  which  are  administered 
by  equity,  those  which  are  appropriate  to  the  circum- 
stances and  relations  most  frequently  arising,  are  well  as- 
certained and  clearly  defined,  both  as  to  their  form  and 
nature.  Certain  species  of  these  belong  to  tbe  exclusive 
jurisdiction,  and  the  doctrines  and  rules  which  regulate 
their  administration  constitute  a  large  portion  of  the 
equity  jurisdiction.  I  shall  complete  my  survey  of  the 
exclusive  jurisdiction  by  enumerating  these  kindp  of  reme- 
dies which  are  commonly  administered,  and  which  are  sus- 
ceptible of  a  definite  classification  and  arrangement. 
They  may  be  grouped  according  to  their  nature  and  ob- 
jects in  the  following  classes. 

§  171.  1.  The  first  class  embraces  those  remedies  which 
are  wholly  ancillary  or  provisional;  which  do  not  either 
directly  or  indirectly  affect  the  nature  of  any  primary 
right,  but  are  simply  means  and  instruments  by  which 
primary  rights  may  be  more  efficiently  preserved,  pro- 
tected, and  enforced  in  judicial  proceedings.     This  class 

§  170,  (d)  Unlimited    Variety    of  N.  E.  191.     This  paragraph  is  cited 

Eciuitable    Remedies.  — •  The    text    is  in    Hoffman    Motor    Trust     Co.    v. 

quoted    in    Sharon    v.    Tucker,    144  Erickson,  124  Minn.  279,  144  N.  W. 

U.  S.  542,  12  Sup.  Ct.  720,  by  Field,  952   (holding  that  a  plaintiff  is  en- 

J.;   quoted,  also,  in  Eector,  etc.,  of  titled    to    such    relief    as    the    facts 

St.  Stephen's  Church  v.  Rector,  etc.  proved    require,    regardless    of    the 

of    Church    of    Transfiguration,    201  prayer  for  relief). 
N.   Y.  1,  Ann.  Cas.   1912A,  760,  94 


§  171  EQUITY    JURISPRUDENCE.  214 

includes  tlie  ordinary  preventive  injunction,  receivers,  and 
interpleader.^  2.  The  second  class  embraces  those  reme- 
dies which  operate  indirectly  to  establish  or  protect  pri- 
mary rights,  either  legal  or  equitable.  They  do  not  ex- 
pressly nor  directly  declare,  establish,  and  enforce  the 
ultimate  right,  estate,  or  interest  of  the  complaining 
party;  but  their  object  is  to  perfect  and  complete  the  means 
by  which  such  right,  estate,  or  interest  is  evidenced  or 
secured, — the  title, — or  to  remove  obstacles  which  hinder 
the  enjoyment  of  such  right.^  They  are  therefore  in  their 
nature  not  final  remedies,  but  are  often  granted  as  prelim- 
inary to  the  final  relief  by  which  the  party 's  primary  right, 
estate,  or  interest  is  established  and  enforced.  The  im- 
portant remedies  contained  in  this  class  are  re-execution 
of  instruments,  reformation  of  instruments,*^  surrender  or 
discharge  of  instruments,  and  cancellation  or  rescission.^ 
3.  The  third  class  embraces  those  remedies  by  which  a 
primary  right  of  property,  estate,  or  interest  is  directly 
declared,  established,  acquired  or  enforced;  and  they  often 
consist  in  the  conveyance  by  defendant  of  a  legal  estate, 
corresponding  to  the  complainant's  equitable  title.  These 
remedies  deal  directly  with  the  plaintiff's  right  of  prop- 
erty, and  grant  to  him  the  final  relief  which  he  needs,  by 
establishing   and    enforcing    such    right.     The    particular 

§171,   (a)   The    text   is    quoted   in  §171,   (c)   The    text    is     cited    in 

Smith  V.  United  States  (C.  C.  Or.),  Bickley  v.  Commercial  Bank  of  Co- 

142  Fed.  225  (receivers) ;  and  cited  in  lumbia,  43  S.   C.  528,  21   S.  E.   886; 

Vila  V.  Grand  Island  E.  L.,  I.  &  C.  S.  Martin  v.  Hempstead  County  Levee 

Co.  (Neb.),  97  N.  W.  613  (ancillary  District  No.  1,  98  Ark.  23,  135  S.  W. 

character  of  the  remedy  of  appoint-  453.     This   and  the   preceding  para- 

ing  a  receiver);   Freer  v.  Davis,  52  graph   are    cited   to   the   effect    that 

W.  Va.  1,  94  Am.  St.  Rep.  895,  59  equity     has     exclusive     jurisdiction 

L.  R.  A.  556,  43  S.  E.  164  (ancillary  over     reformation,     in     Pickrell     & 

character  of  the  remedy  of  injunc-  Craig    Co.    v.    Castleman    Blakemore 

tion  to  restrain  trespass).  Co.,  174  Ky,  1,  191  S.  W.  680. 

§171,  (b)  Quoted    in     Sharon    v.  §171,   (d)   The    text    is    cited    in 

Tucker,   144   U.   S.   542,   12   Sup.  Ct.  Bruner  v.  Miller,  59  W.  Va.  36,  52 

720,  by  Field,  J.,  a  suit  to  establish,  S.    E.    995    (rescission) ;    Watson    v. 

as   a   matter  of   record,   a  title    de-  Borah,    37    Okl.    357,    132    Pac.    347 

pending  on  prescription.  (cancellation). 


215  THE    EXCLUSIVE    JURISDICTION".  §  171 

remedies  properly  belonging  to  this  class  may  assume  an 
almost  unlimited  variety  of  forms,  since  their  form  de- 
pends upon  anji  corresponds  to  the  nature  of  the  primary'- 
right  to  be  established,  and  of  the  subject-matter  over 
which  that  right  extends;  it  is  chiefly  in  its  relation  with 
this  class  that  the  peculiarly  elastic  quality  of  the  equity 
remedial  system  is  found.  The  remedies  belonging  to  the 
class  may,  for  purposes  of  clearer  description,  be  again 
subdivided  into  three  principal  groups.  Some  are  simply 
declarative;  that  is,  their  main  and  direct  object  is  to  de- 
clare, confirm,  and  establish  the  right,  title,  interest,  or 
estate  of  the  plaintiff,  whether  legal  or  equitable ;  they  are 
usually  granted  in  combination  with  others,  and  often  need 
other  kinds  of  relief  as  a  preliminary  step  to  making  them 
efficient;  as,  for  example,  a  preliminary  reformation,  re- 
exlecution,  or  cancellation. «  Others  are  restorative,  or 
those  by  which  the  plaintiff  is  restored  to  the  full  enjoy- 
ment of  the  right,  interest,  or  estate  to  which  he  is  entitled, 
but  the  use  and  enjoyment  of  which  has  been  hindered, 
interfered  with,  prevented,  or  withheld  by  the  wrongdoer. 
These  also  are  often  granted  in  combination  with  other 
kinds  of  relief,  and  frequently  need  some  other  prelim- 
inary equitable  remedy,  such  as  cancellation  or  reforma- 
tion, to  remove  a  legal  obstacle  to  the  full  enjoyment  of  the 
plaintiff's  right,  and  to  render  them  efficient  in  restoring 
him  to  that  enjoyment.  Others  are  remedies  of  specific 
performance,  or  those  by  which  the  party  violating  his  pri- 
mary duty  is  compelled  to  do  the  very  acts  which  his 
duty  and  the  plaintiff's  corresponding  primary  right  re- 
quire from  him.  The  following  particular  instances  are 
examples  of  the  remedies  belonging  to  this  general  class: 
Establishing  and  quieting  title  and  possession  of  land ;  ^ 

§171,  (e)  This  paragraph  of  the  §171,  (f)  The  text  is  cited  in 
text  is  cited  in  Bohart  v.  Chamber-  Mason  v.  Fichner,  120  Minn.  ISo, 
lain,  99  Mo.  622,  13  S.  W.  85,  decree  139  N.  W.  485  (when  a  suit  to  de- 
establishing  the  existence  of  a  lost  termine  adverse  claims  is  of  equi- 
instrument;  Sharon  v.  Tucker,  144  table  cognizance). 
U.  S.  542,  12  Sup.  Ct.  720. 


§  171  EQUITY    JURISPRUDENCE.  216 

establishing  some  general  right  (''bills  of  peace") ;  estab- 
lishing wills  ;g  construing  wills  and  determining  the  rights 
under  them  of  devisees  and  legatees,^  establishing  disputed 
boundaries ;  redeeming  lands  or  chattels  from  mortgages, 
pledges,  and  thus  establishing  the  plaintiff's  right  of  prop- 
erty and  possession  therein;  strict  foreclosure  of  mort- 
gages; specific  performance  of  contracts  and  of  other 
similar  obligations;  performance  of  duties  arising  from 
implied  trusts,  resulting  or  constructive,  by  compelling  a 
conveyance  of  the  legal  title;  performance  of  the  duties 
arising  from  express  trusts,  by  compelling  the  trustee  to 
fulfill  the  trust  according  to  its  terms ;  and  numerous  other 
cases  of  the  same  nature.  4.  A  fourth  class  embraces 
those  remedies  which  establish  and  enforce  liens  and 
charges  on  property,  rather  than  rights  and  interests  in 
property,  either  by  means  of  a  judicial  sale  of  the  prop- 
erty itself  which  is  affected  by  the  lien  and  a  distribution 
of  its  proceeds,  or  by  means  of  a  sequestration  of  the  prop- 
erty, and  an  appropriation  of  its  rents,  profits,  and  income, 
until  they  satisfy  the  claim  secured  by  the  lien.i  The  im- 
portant examples  are:  The  foreclosure  of  mortgages  of 
land  or  of  chattels,  and  of  pledges,  by  a  sale  and  applica- 
tion of  the  proceeds;  the  similar  enforcement  of  grantors' 
or  vendees'  liens  on  land;  the  enforcement  of  mechanics' 
and  other  like  statutory  liens ;  J  the  enforcement  of  charges 
created  by  will  and  other  equitable  liens;  creditors'  suits  to 
enforce  the  equitable  liens  of  judgment  creditors  and  other 

§171,   (g)   This   paragraph   of   the  §171,   (i)   The    text    is    quoted    in 

text   was   cited   in   In   re   Cilley,   58  Knapp,    Stout    &    Co.    v.    McCaffrey, 

Fed.    977,    986,    where,    however,    it  178  111.  107,  69  Am.  St.  Rep.  290.  52 

was  held  that  a  proceeding  to  estab-  N.  E.   898    (enforcing  lien  of  bailee 

lish  a  will  was  not  a  "suit  at  com-  in  equity). 

mon   law   or   in   equity"   within   the  §  171,   (j)   The     text    is     cited    in 

meaning  of  the  statute  authorizing  Hibernia  Savings  &  Loan  Society  v. 

removal   to   a   federal   court   on  the  London  &  Lancashire  Fire  Ins.  Co., 

ground  of  diverse  citizenship.  138   Cal.  257,  71  Pac.   334   (jurisdic- 

§171,   (h)   The    text    is    cited     in  tion  to  enforce  judgment  lien  against 

Matthews  v.  Tyree,  53  W.  Va.  298,  property  of  decedent). 
44  S.  E.  526. 


217  THE    EXCLUSIVE    JURISDICTION.  §  172 

similar  liens  on  the  assets  of  debtors, ^  and  the  like.  5.  A 
fifth  class  contains  certain  special  remedies  which  do  not 
belong  to  the  original  jurisdiction  of  chancery,  but  are 
wholly  the  results  of  statutory  legislation.  Among  them 
are  suits  to  set  aside  wills;  suits  to  establish  or  to  destroy 
some  kinds  of  official  status,  as  proceedings  against  cor- 
porations and  their  officers,  brought  by  stockholders  or 
creditors  or  officials  on  behalf  of  the  state,  to  dissolve  and 
wind  up  the  corporations,  and  to  remove  or  institute  cor- 
poration officers,  and  the  like;  and  suits  for  divorce  abso- 
lute and  limited,  and  for  alimony,  in  many  of  the  states. 
6.  The  last  class  comprises  proceedings  in  which  jurisdic- 
/tion  is  exercised  over  persons  not  sui  juris, — infants,  per- 
sons non  compotes  mentis,  confirmed  drunkards.  The 
foregoing  six  general  classes  include  all  the  important 
species,  and  most  of  the  particular  instances  of  the  reme- 
dies which  belong  to  the  exclusive  jurisdiction,  those  which 
are  administered  alone  by  courts  of  equity. 

§  172.  "When,  under  what  circumstances,  for  what  pur- 
poses, to  what  extent,  and  with  what  limitations  and  re- 
strictions these  remedies,  or  any  one  of  them,  will  actually 
be  granted  to  and  against  litigant  parties,  are  questions 
which  do  not  belong  to  a  statement  of  the  equitable  juris- 
diction; they  belong  alone  to  the  equity  jurisprudence,  and 
their  answer  involves,  to  a  large  extent,  a  discussion  of  its 
doctrines  and  rules.  The  administration  of  those  purely 
equitable  remedies  is  the  judicial  function  which  marks 
and  fixes  one  branch  of  the  exclusive  jurisdiction;  the  de- 
termination of  the  scope  and  extent  of  that  jurisdiction 
only  requires  a  knowledge  of  what  these  remedies  are,  and 
not  of  the  particular  circumstances  under  which  they  will 
be  conferred.  In  a  word,  all  cases  in  which  the  purely 
equitable  remedies  are  granted  fall  within  the  exclusive 
jurisdiction  of  equity;  what  those  cases  are  constitutes  a 

§  171,  (k)  The  text  is  cited  in  Huff  v.  Bidwell,  151  Fed.  563,  81  C.  C.  A. 
43  (creditors'  suits). 


§  173  EQUITY   JURISPRUDENCE.  218 

large  portion  of  the  equity  jurisprudence,  and  is  ascer- 
tained only  by  an  application  of  its  principles,  doctrines, 
and  rules.* 


§§  173,  174. 

§175. 

§§  176-179. 

§§177,178. 

§179. 

§180. 

§181. 

SECTION  in. 

THE  CONCURRENT  JURISDICTION". 

ANALYSIS. 

What   embraced    in    the    concurrent   jurisdiction;    inadequacy    of 

legal  remedies  defined. 
The  remedies  given  must  be  legal  in  their  nature. 
General  principle;   when  no  concurrent  jurisdiction  exists. 
Examples  of  such  cases. 

Where  a  law  court  has  first  taken  cognizance  of  a  case. 
General  principle;  where  concurrent  jurisdiction  does  exist. 
Rule   -first.     Where   equity   has   jurisdiction   for   any   partial   pur- 
pose, it  may  retain  the  cause  for  all  purposes. 
§  182.     Rule  second.     Where  equity  originally  had  jurisdiction,   and   the 
law   subsequently   acquires   jurisdiction    over   the   same    matter, 
the  equity  jurisdiction  still  continues. 
§  183.     Effect  of  the  reformed  procedure  upon  the  equity  jurisdiction. 
§§  184r-189.     Enumeration  of  the  principal  matters  over  which  the  concurrent 
jurisdiction  ordinarily  extends. 
§  185.     Suits  for  the  recovery  of  lands  and  of  chattels, 
§§  186-188.     Suits  for  pecuniary   recoveries. 

§  188.     Suits  arising  from  accident,  mistake,  or  fraud. 
§  189.     Other  special  cases. 

§  173.a  Description  and  Test. — The  Concurrent  Juris- 
diction, as  stated  in  a  former  section  in  this  chapter,  em- 
braces all  those  civil  cases  in  which  the  primary  right,  es- 
tate, or  interest  of  the  complaining  party  sought  to  be 
maintained,  enforced,  or  redressed  is  one  which  is  created 
and  is  cognizable  by  the  law,  and  in  which  the  remedy  con- 

§  172,   (a)   The    text    is     cited    in  ler,  59  W.  Va.  36,  52  S.  E.  995.    Sec- 

Brickley    v.     Commercial    Bank    of  tions   173,    174,    cited,    to   the   effect 

Columbia,  43  S.  C.  528,  21  S.  E.  886.  that  the  remedy  of  accounting  is  em- 

§173,   (a)   Section  III,  §§173-189,  braced  in  the  concurrent  jurisdiction, 

cited   generally   in   Illinois    Finance  in   Balfour    v.    San   Joaquin    Valley 

Co.  V.  Interstate  Rural  Credit  Assn.  Bank  (C.  C.  Cal.),  156  Fed.  500. 
(Del.),  101  Atl.  870;  Bruner  v.  Mil- 


219  THE    CONCURRENT    JURISDICTION.  §  173 

ferred  is  also  of  the  same  kind  as  that  administered,  under 
the  like  circumstances,  by  the  courts  of  law.  The  primary 
right,  estate,  title,  or  interest  which  is  the  foundation  of 
the  suit  must  be  legal,  or  else  the  case  would  belong  to  the 
exclusive  jurisdiction  of  equity ;  and  the  law  must,  through 
its  judicial  procedure,  give  some  remedy  of  the  same  gen- 
eral nature  as  that  given  by  equity;  but  this  legal  remedy 
is  not,  under  the  circumstances,  full,  adequate,  and  com- 
plete. The  actual  foundation  of  this,  concurrent  branch  of 
the  equitable  jurisdiction,  the  essential  principle  to  which 
every  instance  of  its  exercise  must  finally  be  referred,  is 
therefore  the  inadequacy,  incompleteness,  or  insufficiency 
of  the  legal  remedies  which  can  be  granted  by  courts  of 
law  to  the  litigant  parties.  This  inadequacy  or  insuffi- 
ciency inheres,  not  in  the  essential  nature  of  the  relief 
itself,  but  generally  in  the  modes  in  which  the  relief  is  ad- 
ministered by  courts  of  law,  the  inflexible  and  often  arbi- 
trary rules  of  legal  procedure  concerning  parties  to  ac- 
tions, trials,  judgments,  and  the  like.  Although  the 
exclusive  jurisdiction  of  equity  does  not  rest  upon  the 
inadequacy  of  legal  remedies  as  its  foundation,  yet,  as  has 
already  been  said,  the  rules  which  govern  its  exercise,  the 
doctrines  of  equity  jurisprudence  which  guide  and  limit 
the  court  of  chancery  in  its  decision  of  causes  falling 
within  the  exclusive  jurisdiction,  do  also  depend  in  some 
measure  upon  the  insufficiency  and  inadequacy  of  the 
remedies  granted  by  the  law.  This  inadequacy  of  legal 
remedies,  in  its  relations  with  the  exclusive  jurisdiction  of 
equity,  almost  always  exists  in  the  yery  nature  of  the 
remedies  themselves.  The  equitable  remedies  are  differ- 
ent from  and  superior  to  those  conferred  by  the  law,  and 
for  this  reason  a  court  of  equity  may  interfere  and  grant 
them,  although  the  primary  right,  interest,  or  estate  of 
the  plaintiff  is  legal  in  its  nature,  and  he  might  obtain 
some  remedy  for  the  violation  of  his  right  from  a  court  of 
law.  This  is  not  true  of  the  concurrent  jurisdiction.  The 
very  definition  of  that  jurisdiction  assumes  that  the  reme- 


§  174  EQUITY    JURISPRUDENCE.  220 

dies  administered  under  a  given  state  of  circumstances,  by 
equity  and  by  the  law,  are  substantially  the  same, — re- 
coveries of  money,  or  of  specific  tracts  of  land,  or  of  spe- 
cific chattels.  The  incompleteness  or  insufficiency  of  the 
legal  remedy  upon  which  the  concurrent  equitable  juris- 
diction rests  must  therefore  necessarily  exist  in  the  modes 
of  legal  procedure,  its  arbitrary  and  unbending  rules,  its 
want  of  elasticity  and  adaptability  to  circumstances,  and 
all  the  other  incidents  of  legal  methods  which  often  pre- 
vent them  from  doing  full  justice  to  the  litigant  parties. 

§  174.a  The  cases  coming  within  the  concurrent  juris- 
diction may,  for  purposes  of  convenience  only,  and  not 
from  any  difference  of  principle,  be  arranged  under  two 
general  classes.  The  distinguishing  feature  of  the  first 
class  is  the  act,  event,  or  fact  which  is  the  occasion  of  the 
remedial  right.  It  contains  all  those  cases  in  which  the 
primary  right  violated,  the  estate,  title,  or  interest  to  be 
protected,  is  of  course  legal,  and  the  subject-matter  of 
the  suit,  and  the  act,  event,  or  fact  which  occasions  the 
right  to  a  remedy,  may  be  brought  within  the  cognizance  of 
the  law  courts,  and  made  the  foundation  of  a  legal  action, 
but  in  respect  of  which  the  whole  system  of  legal  proce- 
dure and  remedies  is  so  partial  and  insufficient  that  com- 
plete justice  can  only  be  done  by  means  of  the  equity  juris- 
diction. The  most  important  acts,  events,  or  facts  which 
are  the  occasions  of  remedial  rights,  and  which  thus  per- 
mit or  require  the  interposition  of  equity  in  the  cases  com- 
posing this  class,  are  fraud,  mistake,  and  accident.  The 
second  class  contains  all  the  remaining  cases  in  which  the 
primary  right  to  be  redressed  or  protected  is  legal,  and 
the  relief  is  of  the  same  kind  as  that  given  at  law,  but  in 
which,  from  the  special  circumstances  of  the  case  itself, 
or  from  the  inherent  defects  of  the  legal  procedure,  the 
remedy  at  law  is  inadequate,  and  equity  assumes  jurisdic- 

§  174,  (a)  Cited  approval  in  Stockton  v.  Anderson,  40  N.  J.  Eq.  48S,  4 
Atl.  642. 


221  THE    CONCURRENT   JURISDICTION".  §  175 

tion,  in  order  to  do  comi^lete  justice.  As  mere  illustra- 
tions of  this  class  may  be  mentioned  suits  for  an  aceount- 
ing,b  for  contribution,  and  the  like,  in  which  both  the  legal 
and  the  equitable  remedy  is  a  recovery  of  money;  suits 
for  partition,^  for  admeasurement  of  dower,  and  for  set- 
tlement of  boundaries,  in  which  the  relief  in  both  courts  is 
the  obtaining  possession  of  land ;  and  the  suits  which  may 
be  maintained  under  peculiar  circumstances  for  the  re- 
covery of  specific  chattels. 

§  175.  The  Remedies  Legal.^ — ^In  order  that  a  suit  may 
fall  under  the  concurrent  jurisdiction  of  equity,  the 
remedy — that  is,  the  sulistantial  relief  obtained  by  the  de- 
cree— must  be  of  the  same  general  nature  as  that  which 
would  be  obtained  by  means  of  an  action  at  law  under  like 
circumstances.  All  the  general  kinds  of  remedy,  or  final 
relief,  which  are  possible  by  means  of  legal  actions  are  de- 
fined with  absolute  certainty  and  fixedness.  Omitting  the 
particular  species  of  relief  obtainable  through  certain 
writs  or  special  judicial  proceedings,  such  as  "man- 
damus," the  writ  of  "prohibition,"  '* habeas  corpus,"  the 
law,  through  its  actions,  is  confined  to  three  general  kinds 
of  remedies, — the  obtaining  possession  of  specific  tracts  of 
land,  the  obtaining  possession  of  specific  chattels,  and  the 
recovery  of  ascertained  sums  of  money,  either  debts  or 
damages,  by  way  of  compensation.  In  every  case,  there- 
fore, properly  belonging  to  the  concurrent  jurisdiction  of 
equity,  the  final  and  substantial  relief  granted  by  the  de- 
cree must  be  either  an  award  of  possession  of  some  piece 
of  land,  or  a  delivery  of  possession  of  some  specific  chattel, 
including  written  instruments,  such  as  deeds,  which  with 
this  respect  are  regarded  as  chattels,  or  a  pecuniary  re- 

§  174,   (b)   Cited  in  Balfour  v.  San  §  175,   (a)   Cited  with  approval  in 

Joaquin   Valley   Bank    (C.   C.    Cal.),  State  v.  Donegan,  94  Mo.  66,  6  S.  W. 

156  Fed.  500.  693;  Bindseil  v.  Smith,  61  N.  J.  Eq. 

§  174,  (c)  This  paragraph  of  the  654,  47  Atl.  456  (jurisdiction  to  de- 
text  is  cited  in  Daniels  v.  Benedict,  cree  the  transfer  of  written  instru- 
50  Fed.  347  (partition),  ments). 


§  175  EQUITY    JURISPRUDENCE.  222 

covery.i  While  the  equitable  relief  must  be  of  the  same 
general  nature  as  that  granted  by  the  law  courts,  it  need 
not  be  of  the  same  external  form,  nor  be  accompanied  by 
the  same  incidents.^  Thus  where  a  decree  in  equity  awards 
to  the  plaintiff,  as  his  ultimate  relief,  the  possession  of 
certain  land,  it  may,  as  a  preliminary  to  and  basis  of  such 
award,  adjudge  his  estate  and  title — in  fee,  for  life,  or  for 
years — in  and  to  such  land;  while  the  judgment  in  an  ac- 
tion of  "ejectment"  simply  awards  the  possession,  with- 
out expressly  adjudicating  upon  the  estate  or  title.  Also, 
in  most  instances  of  pecuniary  recoveries  in  equity,  the 
money  is  regarded  and  treated  as  a  fund,  which  is  either 
awarded  to  the  single  claimant,  or  is  distributed  among 
the  several  claimants  in  the  shares  to  which  they  are  ad- 
judged to  be  entitled.  The  cases  are  very  few  indeed  in 
which  a  court  of  equity,  in  the  same  manner  and  form  as 
a  court  of  law,  decrees  the  payment  to  the  plaintiff  of  a 
sum  of  money  merely  as  a  debt  or  as  compensatory  dam- 
ages.^    Another    important    element    of    the    concurrent 

§  175,  1  In  respect  to  no  other  topic  connected  with  equity  has  there  been 
such  confusion  of  treatment,  and  such  utter  lack  of  any  consistent  prin- 
ciple, among  text-writers,  as  in  relation  to  the  matter  of  the  concurrent 
jurisdiction.  As  illustrations:  Because  some  purely  legal  rights  and  legal 
causes  of  action  may  be  occasioned  by  fraud,  accident,  or  mistake,  many 
text-writers  have  therefore  placed  fraud,  accident,  and  mistake,  and  every- 
thing pertaining  to  them,  wholly  within  the  concurrent  jurisdiction  of 
equity.  Although  the  primary  right  arising  therefrom  may  be  entirely 
equitable,  and  although  the  remedy  conferred  may  be  one  which  can  be 
administered  only  by  a  court  of  equity,  such  as  reformation,  cancellation, 
injunction,  etc.,  they  are  all,  right  and  remedy,  treated  as  though  belong- 
ing to  this  branch  of  equity  jurisdiction.  In  the  same  manner,  the  sub- 
ject of  partnership,  as  an  entirety,  is  referred  to  this  jurisdiction,  although 
the  interest  to  be  maintained  and  the  remedy  to  be  obtained  are  wholly 
equitable  in  their  nature.  These  instances  are  examples  merely  of  a  mode 
of  treatment  which  fails  to  draw  any  true  line  of  distinction  between  the 
two  great  departments  of  the  equity  jurisdiction. 

§  175,  (b)  For  an  instance  where  Bally  v.  Hornthal,  154  TT.  Y.  64S, 
Bucli  relief  was  required,  and  a  mere  661,  61  Am.  St.  Eep.  645,  652,  49 
personal  judgment  was  rendered,  see       N.  E.  56. 


223  THE    CONCURRENT    JURISDICTION.  §  175 

equitable  jurisdiction  exists  in  the  marked  difference  be- 
tween the  modes  of  procedure  at  law  and  in  equity  with 
reference  to  the  actual  rendition  of  final  judgment  and  the 
form  of  such  judgment.  The  judgment  in  an  action  at 
law,  unaltered  by  modern  statutes,  is  most  truly  a  yea,  yea, 
or  a  nay,  nay;  that  is,  it  is  a  single,  undivided  award,  or 
denial  of  some  one  of  the  three  kinds  of  relief  above  de- 
scribed as  alone  possible;  no  adjustment  of  opposing 
rights,  no  partial  relief  to  each  of  the  opposing  litigants, 
is  permitted.  The  judgment  is  either  for  the  defendant 
wholly,  that  the  plaintiff  take  nothing  by  his  action,  or  for 
the  plaintiff  wholly,  that  he  recover  possession  of  a  speci- 
fied tract  of  land,  or  of  a  specified  chattel,  or  that  he  re- 
cover a  single  sum  of  money  from  the  defendant,  or  from 
all  the  defendants  if  there  are  more  than  one.  The  doc- 
trine of  set-off,  by  which  a  defendant  may  recover  judg- 
ment for  a  debt  against  the  plaintiff,  is  wholly  of  a  statu- 
tory origin;  and  the  doctrine  of  recoupment,  by  which  the 
plaintiff's  pecuniary  recovery  may  be  lessened  by  means 
of  a  claim  for  damages  in  favor  of  the  defendant,  is  a  very 
recent  innovation  upon  the  common-law  methods  of  pro- 
cedure. The  modes  of  procedure  in  a  court  of  equity 
have  never  been  thus  restricted.  Its  decree  is  not  confined 
to  a  single  adjudication  for  or  against  the  defendant;  but 
as  a  preliminary,  and  leading  up  to  the  final  award  in  favor 
of  either  party,  or  even  in  the  very  final  award  itself  being 
thus  partially  in  favor  of  both  litigants,  it  may  make  any 
adjustments,  admit  any  limitations,  and  determine  upon 
any  cross-demands  and  subordinate  claims  which  complete 
justice  done  to  the  parties  shall  require.  The  decree  in 
equity  can  thus  easily  shape  itself  to  the  circumstances  of 
each  case,  even  when  the  final  relief  is  only  an  award  of 
money,  or  of  possession  of  land  or  of  chattels. <^  The  in- 
stances to  which  the  concurrent  jurisdiction  extends  may 

§  175,   (c)  For    example,    although  estate  by   a   cancellation   of  his   in- 

an     administrator     cannot,     to     the  dividual   liability   to    the    debtor   of 

detriment  of  creditors,   distributees,  the    estate,    yet    such    debtor    is    en- 

or  legatees,  discharge  a  debt  due  the  titled  to  a  credit  by  way  of  equi- 


§  176  EQUITY    JURISPRUDENCE.  224 

therefore  be  described,  in  a  general  way,  as  follows :  First, 
those  cases  where  the  primary  right,  interest,  or  estate  is 
of  course  legal,  and  where  the  law  gives  its  remedy,  but 
from  the  superior  flexibility  of  the  equitable  procedure, 
and  the  greater  power  of  the  equitable  decrees  to  do  com- 
plete justice,  the  relief  conferred  by  equity,  although  of 
the  same  kind  as  that  given  by  the  law,  is  more  efficient 
and  complete ;  and  secondly,  those  comparatively  few  cases 
where,  from  the  arbitrary,  rigid,  and  technical  nature  of 
its  rules  of  procedure,  the  law  can  give  no  remedy  at  all.^ 
In  further  treatment  of  this  subject,  I  shall  state  the  gen- 
eral doctrines  upon  which  the  jurisdiction  rests,  and  which 
regulate  all  possible  instances  of  its  exercise,  and  shall 
then  enumerate  and  explain  the  important  and  well-settled 
cases  which  come  within  its  scope. 

§  176.    General  Principle — No  Concurrent  Jurisdiction.a 

The  principle  may  be  stated  in  its  broadest  generality, 
that  in  cases  where  the  primary  right,  interest,  or  estate 
to  be  maintained,  protected,  or  redressed  is  a  legal  one, 
and  a  court  of  law  can  do  as  complete  justice  to  the  mat- 
ter in  controversy,  both  with  respect  to  the  relief  granted 

§  175,  2  As  illustrations  of  this  second  class :  by  the  ancient  rules  of 
common-law  procedure,  at  the  time  when  the  equity  jurisdiction  com- 
menced, there  could  be  no  recovery  at  law  on  a  lost  bond;  and  for  the 
same  reason,  one  partnership  cannot  maintain  an  action  at  law  against 
another  firm,  when  the  two  firms  have  a  common  member. 

table  set-off,  where,  by  its  allowance,  equitable  set-off  has  not  been  spe- 
justice  will  be  done  as  between  him  cifically  pleaded.  State  v.  Donegan, 
and  the  administrator,  without  af-  94  Mo.  68,  6  S.  W.  693. 
fecting  the  rights  of  any  one  except  §  176,  (a)  Cited  with  approval  in 
those  of  the  administrator  as  heir  Rogers  v.  Eogers,  17  R.  I.  623,  24 
or  devisee.  And  where  evidence  of  Atl.  46.  Cited,  generally,  to  the 
such  equitable  set-off  has  been  re-  effect  that  damages  awarded  by 
ceived  without  objection,  being  thus  equity  are  only  such  as  are  ancillary 
before  the  court  with  the  implied  to  the  main  relief,  in  Karns  v.  Allen, 
admission  that  the  pleadings  were  135  Wis.  48,  15  Ann.  Cas.  543,  115 
broad  enough  to  allow  its  reception,  N.  W.  357;  cited  in  Gill  v.  Ely- 
such  judgment  may  be  given  upon  Norris  Safe  Co.,  170  Mo.  App.  478, 
the  facts  as  the  right  of  the  matter  156  S.  W.  811. 
required,  although  the  defense  of  an 


225  THE    CONCURRENT   JURISDICTION.  §  176 

and  to  tlie  modes  of  procedure  by  which  such  relief  is 
conferred,  as  could  be  done  by  a  court  of  equity,  equity 
will  not  interfere  even  with  those  peculiar  remedies  which 
are  administered  by  it  alone,  such  as  injunction,  cancella- 
tion, and  the  like,  much  less  with  those  remedies  which 
are  administered  both  by  it  and  by  the  law,  and  which 
therefore  belong  to  its  concurrent  jurisdiction.!  This  prin- 
ciple, however,  must  be  understood  as  referring  to  the 
original  condition  of  law  and  equity,  at  a  period  wheu 
equity  was  establishing  its  jurisdiction,  and  before  the 
remedial  powers  of  the  law  courts  had  been  extended  by 
statutes,  or  enlarged  by  the  gradual  adoption  of  equitable 
notions;  for,  as  will  be  more  fully  shown  hereafter,  the 
present  power  of  the  law  courts  to  grant  complete  relief 
does  not,  in  general,  deprive  equity  of  a  jurisdiction  which 
it  had  formerly  acquired,  because  the  law  courts  then  pos- 
sessed no  such  power.2  But  in  order  that  the  general 
principle  may  apply,  the  sufficiency  and  completeness  of 
the  legal  remedy  must  be  certain;  if  it  is  doubtful,  equity 
may  take  cognizance.^  Wliile  the  concurrent  jurisdiction 
of  equity  thus  depends  upon  the  inadequacy  of  legal  rem- 

§  176,  1  Southampton  Dock  Co.  v.  Southampton,  etc.,  Board,  L.  R.  11 
Eq.  254;  Collins  v.  Clayton,  53  Ga.  649;  Craft  v.  Dickens,  78  111.  131; 
Dart  V.  Barbour,  32  Mich.  267,  271;  Ross  v.  Buchanan,  13  111.  55,  58; 
Mason  v.  Piggott,  11  111.  85,  89;  and  the  same  doctrine  applies  under  the 
reformed  system  of  procedure:  Kyle  v  Frost,  29  Ind.  382;  Claussen  v. 
Lafrenz,  4  G.  Greene,  224,  225-227.  See  also,  sustaining  the  general 
principle  as  stated  in  the  text,  Grand  Chute  v.  Winegar,  15  Wall.  373 ; 
Insurance  Co.  v.  Bailey,  13  Wall.  616 ;  Hipp  v.  Babin,  19  How.  271 ;  South 
Eastern  R'y  v.  Brogden,  3  Macn.  &  G.  8;  Phillips  v.  Phillips,  9  Hare, 
471;  Moxon  v.  Bright,  L.  R.  4  Ch.  292;  Smith  v.  Leveaux,  2  De  Gex, 
J.  &  S.  1;  Foley  v.  Hill,  1  PhiU.  Ch.  399,  2  H.  L.  Cas.  28. 

§  176,  2  Varet  v.  New  York  Ins.  Co.,  7  Paige,  560,  568 ;  King  v.  Bald- 
win, 2  Johns.  Ch.  554,  17  Johns.  384,  8  Am.  Dec.  415;  Bromley  v.  Hol- 
land, 7  Ves.  3,  19,  per  Lord  Eldon;  Atkinson  v.  Leonard,  3  Brown  Ch. 
218,  224,  per  Lord  Thurlow;  Billon  v.  Hyde,  1  Atk.  126,  per  Lord  Hard- 
wicke.     And  see  post,  §  209. 

§  176,  3  Rathbone  v.  Wan-en,  10  Johns.  587;  King  v.  Baldwin,  2  Johns. 
Ch.554,17  Johns.  384,  8  Am.  Dec.415;Bateman  v.  Willoe,  1  Schoales  &  L. 
1—15 


§  177  EQUITY   JURISPRUDENCE.  226 

edies  for  the  particular  controversy,  or  for  the  class  of 
cases  of  which  the  particular  controversy  is  an  instance, 
it  is  impossible  to  define,  by  any  single  formula,  what  is 
the  adequacy  or  sufficiency  of  the  remedy  at  law  which 
shall  prevent  an  exercise  of  the  equitable  jurisdiction. 
Instead  of  attempting  to  formulate  such  a  comprehensive 
proposition,  we  must  describe  the  various  classes  of  cases 
in  which  this  adequacy  exists,  and  over  which,  as  a  conse- 
quence, the  concurrent  jurisdiction  of  equity  does  not 
extend. 

§177  Illustrations. a — In  all  cases  where  the  plaintiff 
holds  or  claims  to  have  a  purely  legal  estate  in  land,  and 
simply  seeks  to  have  his  title  adjudicated  upon,^  or  to  re- 
cover possession,  against  an  adverse  claimant  who  also 
relies  upon  an  alleged  legal  title,  there  being  no  equitable 
feature  of  fraud,  mistake,  or  otherwise,  calling  for  the 
application  of  equitable  doctrines  or  the  granting  of  pecu- 
liar equitable  reliefs,  the  remedy  at  law  is  adequate,  and 
the  concurrent  jurisdiction  of  equity  does  not  exist.  A 
suit  in  equity,  under  its  concurrent  jurisdiction,  will  not 
be  maintained  to  take  the  place  of  the  action  of  ejectment, 
and  to  try  adverse  claims  and  titles  to  land  which  are 
wholly  legal,  and  to  award  the  relief  of  a  recovery  of  pos- 
session.i  ^    "While  this  general  doctrine  is  well  established, 

205,  per  Lord  Redesdale;  Southampton  Dock  Co.  v.  Southampton,  etc., 
Board,  L.  R.  11  Eq.  254;  South  Eastern  R'y  v.  Brogden,  3  Macn.  &  G.  8 
§  177,  1  Welby  v.  Duke  of  Rutland,  6  Brown  Pari.  C.  575  (vol.  2,  p.  39, 
in  Tomlins's  ed.') ;  Hill  v.  Proctor,  10  W.  Va.  59,  77;  Caveds  v.  Billings, 
16  Fla.  261;  Strubher  v.  Belsey,  79  111.  307;  Phelps  v.  Harris,  51  Miss. 

§  177,   (a)   Cited  with  approval  in  souglit  to  remove  cloud  on  title  be- 

Woodsworth  v.  Tanner,  94  Mo.   124,  long  to  the  exclusive  jurisdiction. 

7   S.  W.   104;   Eogers  v.   Kogers,   17  §177,   (c)   Ejectment    Bills.  —  The 

E.  I.  623,  24  Atl.  46;   cited,  also,  in  text  is  cited  in  Porter  v.  Armour  & 

Illinois   Steel   Co.   v.   Sehroeder,   133  Co.,   241   111.   145,   89   N.   E.   356;   in 

Wis.  561,   126  Am.  St.  Rep.  977,   14  Watkins   v.    Childs,    79    Vt.    234,    65 

L.  R.  A.  (N.  S.)  239,  113  N.  W.  51.  Atl.    81     (suit    concerning    disputed 

§177,   (b)  It    must    be    borne    in  boundaries).    In  the  following  cases, 

mind    that    cases    where    relief    is  the  plaintiff  being  out  of  possession, 


227  THE    CONCURRENT    JURISDICTION.  §  177 

still,  in  addition  to  the  particular  cases  of  disputed  bound- 
aries, partition,  and  assignment  of  dower,  over  wliich  the 
concurrent  jurisdiction  may  extend,  and  in  which  a  remedy- 
strictly  legal  may  be  granted,  a  court  of  equity  will  also 
confer  the  final  relief  of  possession,  and  will  decree  a  de- 
fendant to  deliver  up  possession  of  land  to  the  owner,  when 
such  relief  is  incidental  to  the  main  object  of  the  suit,  and 
the  action  is  brought  for  some  object  otherwise  within  the 

789,  793;  Lewis  v.  Cocks,  23  Wall.  466,  469;  Boston  Diatite  Co.  v.  Flor- 
ence Mfg.  Co.,  114  Mass.  69,  19  Am.  Rep.  310 ;  Whitehead  v.  Kitson,  119 
]\Iass.  484;  Griswold  v.  Fuller,  33  Mich.  268;  First  Nat.  Bank  v.  Bininger, 
26  N.  J.  Eq.  345;  Woodi'ufie  v.  Robb,  19  Ohio,  212,  214;  Wolfe  v.  Scar- 
borough, 2  Ohio  St.  361,  368;  Woleott  v.  Robbins,  26  Conn.  336;  Green 
V.  Spring,  43  111.  280;  Roberts  v.  Taliaferro,  7  Iowa,  110,  112;  Shotwell  v. 
Lawson,  30  Miss.  27,  64  Am.  Dec.  145 ;  Bobb  v.  Woodward,  42  Mo.  482, 
488;  Waddell  v.  Beach,  9  N.  J.  Eq.  793,  795;  Milton  v.  Hogue,  4  Ired.  Eq. 
415,  422;  Pell  v.  Lander,  8  B.  Mon.  554,  558;  Doggett  v.  Hart,  5  Fla. 
215,  58  Am.  Dec.  464;  Dickerson  v.  Stoll,  8  N.  J.  Eq.  294,  298;  Topp  v. 
Williams,  7  Humph.  569;  Hale  v.  Darter,  5  Humph.  79;  Hipp  v.  Babin, 
19  How.  271,  277;  Bowers  v.  Smith,  10  Paige,  193,  200. 

the  bill  was  held  to  be  an  ejectment  Pac.  50,  106  Pac.  1052;  Williams  v. 

bill,  and  relief  was  refused:  Fussell  Mathewson,    73    N.   H.    242,    60   Atl. 

V.  Gregg,  113  U.  S.  550,  5  Sup.  Ct.  687;  Pittman  v.  Burr,  79  Mich.  539, 

631;     Laeassagne     v.     Chapuis,     144  44  N.  W.  951;  Leininger  v.  Summit 

U.   S.   119,   12   Sup.   Ct.   659;    Smyth  Branch  R.   Co.,   180  Pa.   St.   289,   36 

V.    New    Orleans    Canal    &    Banking  Atl.  738;  Saunders  v.  Racquet  Club, 

Co.,  141  U.  S.  656,  12  Sup.  Ct.  113;  170    Pa.    St.    265,    33    Atl.    79,    37 

Ringo  V.  Binns,  35  U.   S.    (10  Pet.)  Wkly.  Notes  Cas.  130;  Chambersburg 

269;  McGuire  v.  Pensacola  City  Co.,  Borough    School    Dist.    v.    Hamilton 

105  Fed.  677,  44  0.  C.  A.  670;  John-  Tp.  School  Dist.,  228  Pa.  St.  119,  77 

son    V.    Munday,    104    Fed.    594,    44  Atl.  414;  Rogers  v.  Rogers,  17  R.  I. 

C.   C.  A.   64;   E'rskine  v.   Forest  Oil  623,  24  Atl.  46;  New  York  &  N.  E. 

Co.,  80  Fed.  583;  Eiffert  v.  Craps,  58  R.    Co.    v.    City    of    Providence,    16 

Fed.  470,  7  C.  C.  A.  319,  8  U.  S.  App.  R.  L   746,   19  Atl.   759;   Chandler  v. 

436;  Jordan  v.  Phillips  &  Crew  Co.,  Graham,    123    Mich.    327,    82   N.   W. 

126  Ala.  561,  29  South.  831;  Morgan  814;   .Jones   v.  Fox,   20   W.   Va.   370. 

V.  Lehman,  Durr  &  Co.,  92  Ala.  440,  As  stated  in  Frost  v.  Walls,  93  Me. 

9     South.    314;     Ohm    v.    City    and  405,  45  Atl.  287,  "It  is  not  the  busi- 

County  of  San  Francisco  (Cal.),  25  ness  of  equity  to  try  titles  and  put 

Pac.    155;    Gage  v.   Mayer,   117   III.  one  party  out  and  another  in."     A 

632,  7  N.  E.  97;   Atkinson  v.  J.  R.  lessee  out  of  possession  cannot  try  in 

Crowe  Coal  &  Min.  Co.,  SO  Kan.  161,  equity  the  right  of  one  in  possession 

18  Ann.   Cas.   242,   39  L.  R.  A.   102  claiming  to  hold  under  a  prior  lease. 


§177 


EQUITY    JURISPRUDENCE. 


228 


equity   jurisdiction. 2  d     in    \[]^q    manner,    the    concurrent 
jurisdiction  does  not  embrace  suits  by  the  legal  owner  to 

§177,  2  Green  v.  Spring,  43  111.  280;  Roberts  v.  Taliaferro,  7  Iowa, 
110,  112. 


Weiss  V.  Levy,  166  Mass.  290,  44  N.  K. 
225.  A  receiver  cannot  maintain  a 
bill  to  recover  possession  of  land 
from  a  stranger  to  the  equity  case  in 
which  he  was  appointod.  Coles  v. 
Northrup,  66  Fed.  831, 14  C.  C.  A.  138, 
30  U.  S.  App.  270.  The  mere  fact  that 
the  'dispute  involves  a  question  of 
boundary  does  not  give  jurisdiction, 
iiuless  the  case  is  one  of  which 
equity,  under  its  established  juris- 
diction, has  cognizance.  Walker  v. 
Leslie,  90  Ky.  642,  14  S.  W.  682; 
Watkins  v.  Childs,  79  Vt.  234;  65 
Atl.  81  (citing  text);  Carberry  v. 
West  Virginia  &  P.  R.  Co.,  44  W.  Va. 
260,  28  S.  E.  694.  In  some  juris- 
dictions it  is  held  that  where  a  ques- 
tion of  title  is  raised  in  a  2}<i^iitio7i 
or  foreclosure  bill,  the  title  must  be 
established  at  law.  The  reason  given 
is  that  as  to  the  party  denying  title 
the  bill  is  an  ejectment  bill.  Thus, 
in  Osborne  v.  Osborne,  41  S.  C.  195, 
19  S.  E.  494,  the  plaintiff  in  parti- 
tion claimed  half  of  the  land  and 
the  defendant  all  of  it.  It  was  held 
that  the  issue  must  be  tried  at  law. 
In  Benoist  v.  Thomas,  121  Mo.  660, 
27  S.  W.  609,  the  plaintiff's  title  to 
one-half  the  land  was  undisputed, 
but  there  was  a  dispute  between  the 
defendants  as  to  the  other  half. 
See,  also,  on  partition,  Capell  v. 
Moses,  36  S.  C.  559,  15  S.  E.  711; 
Marshall  v.  Pitts,  39  S.  C.  390,  17 
S.  E.  831.  As  to  foreclosure,  see 
Loan  &  Exchange  Bank  v.  Peterkin, 
52  S.  C.  236,  68  Am.  St.  Rep.  900, 
29  S.  E.  546. 

§177,   (d)   The  text    is    quoted    in 


Hanna   v.    Reeves.    22    Wash.    6,    60 
Pac.  62. 

Delivery  of  Possession  as  Inci- 
dental to  Other  Relief.  —  Thus,  in 
Woodsworth  v.  Tanner,  94  Mo.  124, 
7  S.  W.  104,  a  wife  brought  suit 
to  cancel  a  deed  to  her  husband,  and 
it  was  held  that  as  incidental  thereto 
the  court  might  decree  possession. 
The  court  said:  "When  the  suit  is 
for  some  purpose  within  the  equi- 
table jurisdiction  of  the  court,  and 
that  relief  is  granted,  and  possession 
is  incidental  to  such  relief,  the  court 
may  go  on,  and  award  a  writ  for 
the  possession.  Having  jurisdiction 
for  one  purpose,  it  will  give  full 
and  complete  relief,  even  to  the  ex- 
tent of  decreeing  possession,  and 
will  enforce  that  branch  of  the  de- 
cree." Citing  Pom.  Eq.  Jur.,  §  177. 
But  the  mere  fact  that  equitable  re- 
lief, such  as  account,  discovery,  etc., 
is  prayed,  does  not  give  jurisdiction 
when  the  right  to  such  relief  does 
not  arise  until  the  legal  title  is  es- 
tablished. North  Pennsylvania  Coal 
Co.  V.  Snowden,  42  Pa.  St.  (6 
Wright)  488,  82  Am.  Dec.  530;  Will- 
iams V.  Fowler,  201  Pa.  St.  336,  50 
Atl.  969.  The  mere  fact  that  a  ques- 
tion of  priority  of  liens  arises  does 
not  authorize  such  relief.  Cole  v. 
Mettee,  65  Ark.  503,  67  Am.  St.  Rep. 
945,  47  S.  W.  407.  Although  plaintiff 
cannot  sue  at  law  because  he  has 
not  the  legal  title,  he  cannot  there- 
fore go  into  equity  to  obtain  pos- 
session unless  he  shows  that  defend- 
ants are  affected  by  his  equity. 
Young  v.  Porter,  3  Woods,  342,  Fed. 
Cas.   No.   18,171. 


229  THE    CONCURRENT   JURISDICTION.  §  178 

recover  possession  of  a  chattel,  except  in  the  few  cases 
where  the  chattel  has  a  certain  special,  extraordinary,  and 
unique  value  impossible  to  be  compensated  for  by  damages, 
nor  suits  merely  to  determine  the  legal  title  to  chattels 
between  adverse  claimants,  where  the  claim  of  neither 
party  involves  or  depends  upon  any  equitable  interest  or 
feature.  In  all  ordinary  controversies  concerning  the 
legal  ownership  or  possession  of  chattels,  the  common-law 
actions  of  replevin  or  trover  furnish  a  complete  and 
adequate  remedy.^  « 

§  178.a  Cases  in  which  the  remedy  is  a  mere  recovery 
of  money  do  not  ordinarily  come  under  the  concurrent 
jurisdiction.  Where  the  primary  right  of  the  plaintiff  is 
purely  legal,  arising  either  from  the  non-performance  of 
a  contract  or  from  a  tort,  and  the  money  is  sought  to  be 
recovered  as  a  debt  or  as  damages,  and  the  right  of  action 
is  not  dependent  upon  or  connected  with  any  equitable 
feature  or  incident,  such  as  fraud,  mistake,  accident,  trust, 
accounting,  or  contribution,  and  the  like,  full  and  certain 
remedies  are  afforded  by  actions  at  law,  and  equity  has  no 
jurisdiction ;  these  are  cases  especially  within  the  sole  cog- 

§  177,  3  Bowes  v.  Hoeg,  15  Fla.  403,  408  (recovery  of  possession  of  a 
chattel) ;  Long  v.  Barker,  85  111.  431  (to  determine  legal  title  to  chattels) ; 
McCiillogh  V.  Walker,  20  Ala.  389.  391  (to  enforce  a  gift  of  a  chattel, 
legal  remedy  complete) ;  Young  v.  Young,  9  B.  Mon.  66  (to  try  legal  title 
to  chattels,  replevin  sufficient) ;  Comby  v.  Me  Michael,  19  Ala.  747  (to 
compel  delivery  of  a  chattel) ;  Hall  v.  Joiner,  1  S.  C.  186. 

§  177,    (e)    Lawrence     v.     Times  the  bill."     Chambers  v.  Chambers,  98 

Printing  Co.,  90  Fed.  24  (books  and  Ala.  454,  13  South.  674.     Belief  will 

accounts  of  a  newspaper) ;  Keystone  not  be  awarded  merely  because  dis- 

Elect.  L.,  H.  &  P.  Co.  v.  Peoples'  E.  covery   is    asked   when   there    is    no 

L.,  H.  &  P.  Co.,  200  Pa.  St.  366,  49  averment  showing  its  materiality  or 

Atl.   951;    Jones   v.  MacKenzie,   122  necessity.     Armstrong  v.  Huntons,  1 

Fed.  390  (railroad  ties).     "Of  course  Rob.   (Va.)  323. 

the    mere    fact    that    complainants'  §  178,   (a)  Cited  with  approval  in 

legal  remedies  would  prove  abortive  Bennett  v.  Bennett,  63  N.  J.  E'q.  306, 

because  of  the  insolvency  of  the  re-  49  Atl.  501;  Darfi;in  v.  Hewlitt,  115 

spondents  cannot  impart   equity  to  Ala.  510,  22  South.  128. 


§  178  EQUITY   JURISPRUDENCE.  230 

nizance  of  the  law.^^     This  proposition  does  not  state  the 
entire  doctrine.     Even  when  the  cause  of  action,  based 

§  178,  1  Cochran  v.  Cochran,  2  Del.  Ch.  17 ;  Askew  v.  Myrick,  54  Ala. 
30;  Bellamy  v.  Hawkins,  16  Fla.  733;  Collins  v.  Stephens,  58  Ga.  284; 
Badger  v.  McNamara,  123  Mass.  117;  Stewart  v.  Mumford,  80  111.  192; 
Ward  V.  Peck,  114  Mass.  121;  Finnegan  v.  Femandina,  15  Fla.  379,  21 
Am.  Rep.  292;  Reese  v.  Bradford,  13  Ala.  837;  Sessions  v.  Sessions,  33 
Ala.  522,  525;  Andrews  v.  Huckabee,  30  Ala.  143;  Maury  v.  Mason,  8 
Port.  211;  Torrey  v.  Camden  etc.  R.  R.,  18  N.  J.  Eq.  293;  Heilman  v. 
Union  Canal  Co.,  37  Pa.  St.  100,  104;  Vose  v.  Philbriek,  3  Story,  335, 
344;  Howard  v.  Jones,  5  Ired.  Eq.  75,  79,  81;  Ohling  v.  Luitjens,  32  111. 
23;  Anderson  v.  Lincoln,  5  How.  (Miss.)  279,  284;  Abbott  v.  Allen,  2 
Johns.  Ch.  519,  7  Am.  Dec.  554;  Curtis  v.  Blair,  26  Miss.  309,  327;  John- 
son V.  Conn.  Bk.,  21  Conn.  148,  157  (damages  for  wrongful  taking  of 
chattels);  Wolf  v.  Irons,  8  Ark.  63,  66;  Stone  v.  Stone,  32  Conn.  142; 
Coquillard  v,  Suydam,  8  Blackf.  24,  29;  Meres  v.  Crisman,  7  B.  Mon.  422 
(damages  for  a  tort)  ;  Lawson  v.  Davis,  7  Gill,  345;  Perkins  v.  Perkins, 

16  Mich.  162,  167;  Bennett  v.  Nichols,  12  Mich.  22;  Blakeley  v.  Biscoe,  1 
Hemp.  114;  Echols  v.  Hammond,  30  Miss.  177;  Norwich  R.  R.  v.  Storey, 

17  Conn.  364,  370;  Fletcher  v.  Hooper,  32  Md.  210;  Jones  v.  Newhall, 
115  Mass.  244,  15  Am.  Rep.  97. 

§  178,  (b)    Quoted    in    Phipps    v.  49  Atl.  501.     To  collect  on  a  bond 

Kelly,  12  Or.  213,  6  Pac.  707;  Frank-  for  maintenance.     Elliott  v,  Elliott 

lin  Township  v.  Crane,  80  N.  J.  Eq.  (N.    J.),    36    Atl.    951.     To    recover 

509,   43    If.   R.   A.    (N.    S.)    604,    85  part    of    the    proceeds    recovered   in 

Atl.    408    (action    to    determine    lia-  an   action   for   tort.     Kammermayer 

bility    of    tax    collector) ;    cited    in  y,  Helz,  107  Wis.  101,  82  N.  W.  689. 

Myers  v.  Sierra  Val.  Stock  &  Agric.  To  enforce  an  unlimited  liability  of 

Assn.,  122  Cal.  669,  55  Pac.  689,  also  stockholders.     Marsh    v.    Kaye,    168 

in  Becker  v.  Frederick  W.  Lipps  Co.  n.   Y.    196,    61   N.   E.    177.     In   like 

(Md.),   101   Atl.   783.  manner,  relief  will  be  refused  when 

No    Jurisdiction,    Ordinarily,    for  a  mere  money  recovery  on  a  nogo- 

Mere  Recovery  of  Damages. — In  the  tiable  instrument  is  asked.     Shields 

following  cases  relief  was  refused,  a  v.  Barrow,  58  U.  S.   (17  How.)   130; 

sum  due  under  a  contract  or  damages  Sioux   Nat.   Bank   v.   Cudahy   Pack- 

for    breach    thereof    being    sought;  ing  Co.,  58  Fed.  20;   McCullough  v. 

Lewis  V.  Baca,  5  N.  M.  289,  21  Pac.  Kervin,  49  S.'C.  445,  27  S.  E.  456; 

343;    Matthews    v.    Matthews,    133  Jumper  v.  Commercial  Bank,  48  S.  C. 

N.   Y.   679,   31   N.   E.   519;    Chew  v.  430,   26  S.  E.   725.     In  jurisdictions 

Perkins  (Md.),  31  Atl.  507.     In  the  where  a  beneficiary  is  allowed  to  sue 

following  actions  also  relief  was  re-  on   a   contract,   it   would   seem   that 

fused:  To  enforce  a  decree  for  ali-  he  should  not  be  allowed  equitable 

mony    granted    in    a    foreign    state.  aid  to  recover  damages.     Hopkins  v. 

Bennett  v.  Bennett,  63  N.  J.  Eq.  306,  Hopkins,    86   Md.   681,   37    Atl.   371. 


231 


THE    CONCURRENT    JURISDICTION. 


178 


upon  a  legal  right,  does  involve  or  present,  or  is  connected 
with,  some  particular  feature  or  incident  of  the  same  kind 
as  those  over  which  the  concurrent  jurisdiction  ordinarily 
extends,  such  as  fraud,  accounting,  and  the  like,  still,  if  the 
legal  remedy  by  action  and  pecuniary  judgment  for  debt 
or  damages  would  be  complete,  sufficient,  and  certain — that 
is,  would  do  full  justice  to  the  litigant  parties — in  the  par- 
ticular case,  the  concurrent  jurisdiction  of  equity  does  not 
extend  to  such  case.c  por  example,  whenever  an  action  at 
law  will  furnish  an  adequate  remedy,  equity  does  not  as- 


An  assignee  of  a  legal  claim  cannot 
ordinarily  seek  such  relief  in  equity. 
"A  court  of  equity  will  not  enter- 
tain a  bill  by  the  assignee  of  a 
strictly  legal  right,  merely  on  the 
ground  that  he  cannot  bring  an  ac- 
tion at  law  in  his  own  name,  nor 
unless  it  appears  that  the  assignor 
prohibits  and  prevents  such  action 
from  being  brought  in  his  name,  or 
that  an  action  so  brought  will  not 
afford  the  assignee  an  adequate 
remedy."  Hayes  v.  Hayes,  45  N.  J. 
Eq.  461,  17  Atl.  634;  affirmed,  Hayes 
V.  Berdan,  47  N.  J.  Eq.  567,  21  Atl. 
339.  See,  also,  Bernz  v.  Marcus 
Sayre  Co.,  52  N.  J.  Eq.  275,  30  Atl. 
21.  Where  the  assignor  collects 
after  the  assignment,  the  assignee 
has  an  adequate  remedy  at  law. 
French  v.  Hay,  89  U.  S.  (22  Wall.) 
231.  A  receiver  cannot  maintain  a 
bill  against  the  sureties  on  the  bond 
of  his  predecessor;  Combs  v.  Shisler, 
47  W.  Va.  373,  34  S.  E.  763;  nor  to 
recover  from  stockholders'  dividends 
illegally  paid;  Hayden  v.  Thompson, 
67  Fed.  273.  A  trustee  under  a 
mortgage  cannot  maintain  a  bill 
against  a  city  to  recover  money  due 
by  the  city  to  his  mortgagor.  Inter- 
national Trust  Co.  V.  Cartersville  I. 
G.  &  W.  Co.,  63  Fed.  341.  For  the 
same  reason,  a  holder  of  a  judgment 
against  an  insolvent  corporation  can- 
not resort  to  equity  to  compel  the 


allowance  of  his  claim  by  the  re- 
ceiver. Denton  v.  Baker,  79  Fed. 
189,  24  C.  C.  A.  476.  Likewise, 
where  the  relief  sought  is  damages 
for  a  tort,  as  for  trespass  to  land 
(Wiggins  V.  Williams,  36  Fla.  637, 
30  L.  E.  A.  754,  18  South.  859;  Rhea 
V.  Hooper,  73  Tenn.  (5  Lea)  390), 
or  for  conversion  of  personal  prop- 
erty (Eobertson  v.  McPherson,  4 
Ind.  App.  595,  31  N.  E.  478),  relief 
will  be  refused.  See,  also,  L.  Mar- 
tin Co.  v.  L.  Martin  &  Wilckes  Co., 
75  N.  J.  Eq.  39,  72  Atl.  294,  re- 
versing (N.  J.  Eq.)  71  Atl.  409 
(no  damages,  as  distinguished  from 
account  of  profits,  in  connection 
with  injunction  against  unfair  com- 
petition). 

Whether  a  suit  in  equity  lies  by 
a  trustee  in  bankruptcy  to  recover 
a  voidable  preference  under  §  60b 
of  the  Bankruptcy  Act  of  1898  is 
a  disputed  question;  see  cases  re- 
viewed in  Simpson  v.  Western  Hard- 
ware and  Metal  Co.,  227  Fed.  304; 
but  an  action  under  §  67e  to  recover 
property  fraudulently  transferred  is 
within  the  equity  jurisdiction:  Id. 

§178,  (c)  This  and  the  following 
sentence  were  quoted  in  Campbell 
V.  Rust,  85  Va.  653,  8  S.  E.  664; 
Buck  V.  Ward,  97  Va.  209,  33  S.  E. 
513;  Chapman  v.  Lee,  45  Ohio  St. 
356,  13  N.  E.  736.  As  stated  by 
the   United   States   Supreme   Court: 


§178 


EQUITY   JUEISPRUDENCE. 


232 


sume  jurisdiction  because  an  accounting  is  demanded  or 
needed  ;2^  nor  because  the  case  involves  or  arises  from 
fraud ;  2  ®  nor  because  a  contribution  is  sought  from  per- 

§178,  2  Jewett  v.  Bowman,  29  N.  J.  Eq.  174;  Badger  v,  McNamara, 
123  Mass.  117;  Passyunk  Building  Association's  Appeal,  83  Pa.  St.  441 
(accounts  are  all  on  one  side,  and  no  discovery  is  prayed) ;  Frue  v.  Loring, 
120  Mass.  507;  Ward  v.  Peck,  114  Mass.  121;  Coquillard  v.  Suydam,  8 
Blaokf.  24,  29  (against  an  agent,  where  the  agency  is  for  a  single  trans- 
action) ;  Norwich,  etc.,  R.  R.  v.  Story,  17  Conn.  364,  370  (the  fact  that 
the  accounts  between  the  parties  are  numerous  and  complicated  is  not 
alone  sufficient  to  give  jurisdiction  in  equity  in  Connecticut)  ;  Long  v. 
Cochran,  9  Phila.  267;  Santacruz  v.  Santacruz,  44  Miss.  714,  720. 

§  178,  3  Fraudulent  misappropriation  and  conversion  of  money :  Bay 
City  Bridge  Co.  v.  Van  Etten,  36  Mich.  210;  where  the  suit  is  merely  to 


"Whenever  one  person  has  in  his 
hands  money  equitably  belonging  to 
another,  that  other  person  may  re- 
cover it  by  assumpsit  for  money 
had  and  received.  The  remedy  at 
law  is  adequate  and  complete." 
Gaines  v.  Miller,  111  U.  S.  395,  4 
Sup.  Ct.  426.  Although  a  note  is 
delivered  by  mistake,  if  only  a 
money  recovery  is  sought  the  legal 
remedy  is  adequate.  Bolt  v.  Gray, 
54  S.  C.  95,  32  S.  E.  148.  In  Boyce 
v.  Allen,  105  Iowa,  249,  74  N.  W. 
948,  the  plaintiff  conveyed  property 
by  absolute  deed  as  security.  He 
came  into  equity  to  sue  for  the  price. 
It  was  held  that  such  relief  could 
be  given  at  law  and  the  bill  was 
dismissed. 

§  178,  (d)  Accounting. —  The  text 
is  cited  to  this  point  in  Balfour  v. 
San  Joaquin  Valley  Bank  (C.  C. 
Cal.),  156  Fed.  500.  See  Schwalber 
V.  Ehman,  62  N.  J.  Eq.  314,  49  Atl. 
1085;  "Willis  v.  Crawford,  38  Or. 
522,  63  Pac.  985;  Garland  v.  Hull, 
21  Miss.  (13  Smedes  &  M.)  76,  51 
Am.  Dec.  140;  Dargin  v.  Hewlitt. 
115  Ala.  510,  22  South.  128;  Getman 
V.  Dorr,  59  N.  Y.  Supp.  788,  28  Misc. 
Eep.  654;  Appeal  of  Pittsburgh  etc. 


E.  E.  Co.,  99  Pa.  St.  177.  In  Nor- 
deen  v.  Buck,  79  Minn.  352,  82  N.  W. 
644,  the  action  was  held  to  be  legal, 
although  the  examination  of  a  long 
account  was  involved.  And  in  Ga- 
lusha  v.  Wendt,  114  Iowa,  597,  87 
N.  W.  512,  it  was  held  that  mere  in- 
tricacies of  the  calculations  neces- 
sary to  the  determination  of  the 
amount  of  plaintiff's  recovery  do  not 
make  it  an  equitable  action.  The 
mere  fact  that  the  party  from  whom 
the  account  is  sought  is  a  receiver 
does  not  give  equity  jurisdiction. 
Hamm  v.  J.  Stone  &  Sons  Live  Stock 
Co.,  13  Tex.  Civ.  App.  414,  35  S.  W. 
427.  In  Kuhl  v.  Pierce  County,  44 
Neb.  584,  62  N.  W.  1066,  a  county 
brought  suit  against  two  sets  of 
sureties  on  the  bonds  of  a  county 
treasurer,  whose  defalcations  had  so 
extended  that  it  could  not  be  deter- 
mined during  which  term  they  had 
occurred.  The  court  held  that  the 
complication  was  due  to  the  laches 
of  the  county  and  that  the  right 
of  the  defendants  to  a  jury  trial 
coidd  not  be  destroyed  thereby. 

§178,  (e)  Fraud.— The  text  is 
cited  to  this  point  in  Leonard  v. 
Arnold,   244   111.   429,   91   N.   E.   534, 


233  THE    CONCUREENT    JURISDICTION.  §  178 

sons  jointly  indebted;  ^  ^  nor  even  to  recover  money  held  in 
trust,  where  an  action  for  money  had  and  received  will 
lie. 5  s  In  the  following  cases,  which  are  given  as  illustra- 
tions, the  concurrent  jurisdiction  of  equity  was  held  not 
to  exist,  although  each  case  presented  some  peculiar  fea- 
ture which  was  claimed  to  be  equitable,  and  to  remove  it 
from  the  exclusive  jurisdiction  of  the  law:  Where  a  judg- 
ment debtor  had  died,  and  no  administrator  had  been 
appointed,  a  suit  in  equity  could  not  be  maintained  by  the 
creditor  to  recover  the  amount  of  his  judgment;  ^  to  re- 
recover  damages  on  account  of  the  fraud :  Ferson  v.  Sanger,  Daveis,  252, 
259,  2G1;  and  see  Vose  v.  Philbriek,  3  Story,  335,  344;  where  a  court  of 
law  had  first  taken  jurisdiction:  Glastonbury  v.  McDonald's  Adm'r,  44 
"Vt.  450,  453;  in  general,  where  the  legal  remedy  is  adequate:  Youngblood 
V.  Youngblood,  54  Ala.  486;  Huff  v.  Ripley,  58  Ga.  11;  Suter  v.  Mathews, 
115  Mass.  253. 

§  178,  4  Patterson  v.  Lane,  35  Pa.  St.  275  (suit  by  a  creditor  of  an 
insolvent  corporation  against  the  stockholders,  to  enforce  their  individual 
liability,  where  a  remedy  was  given  at  law  by  statute) ;  Stone  v.  Stone,  32 
Conn.  142  (suit  on  implied  contract  against  several  defendants,  to  recover 
money  paid  out  for  their  joint  benefit). 

§  178,  5  Crooker  v.  Rogers,  58  Me.  339. 

§  178,  6  Cochran  v.  Cochran,  2  Del.  Ch.  17,  He  should  procure  the 
appointment  of  an  administrator,  and  proceed  in  law  against  him. 

See  Whitney  v.  Fairbanks,  54    Fed.  at  law  in  an  action  sounding  in  tort 

985;    Andrews    v.    Moen,    162    Mass.  or    for    money    had    and    received." 

294,   38   N.   E.   505;    State   v.   Jones,  For   a   good   statement   of   the   rule, 

131  Mo.  194,  33  S.  W.  23;   Krueger  see   Security   Sav.   &  Loan  Assn.   v. 

V.   Armitage,   58   N.   J.   Eq.   357,   44  Buchanan,  66  Fed.  799,   14  C.  C.  A. 

Atl.      167;      Polhemus     v.     Holland  97,  31  U.  S.  App.  244. 

Trust  Co.,  59  N.  J.  Eq.  93,  45  Atl.  §  178,   (f )  Contribution.— Myers  v. 

534;  Shields  v.  McCandlish,  73  Fed.  Sierra    Val.    Stock    &    Agric.    Assn., 

318.     In    Paton    v.    Major,    46    Fed.  122    Cal.    669,   55   Pac.    689    (suit   to 

210,  the  court  quoted  the  following  enforce     a     right     of     contribution 

from  Buzard  v.  Houston,   119   U.  S.  among  stockholders,  created  by  stat- 

347,    7    Sup.    Ct.    249:   "In    cases    of  ute). 

fraud  or  mistake,  as  under  any  other  §  178,   (g)    The   text  is   quoted   in 

head     of     chancery     jurisdiction,     a  Franklin  Township  v.  Crane,  SO  N".  J. 

court  of  the  United  States  will  not  Eq.  509,  43  L.  R.  A.   (N,  S.)  604,  85 

sustain    a    bill    in    equity    to    obtain  Atl.  408  (action  to  hold  tax  collector 

only   a   decree    for   the    payment   of  liable    for    funds    coming    into    hia 

money    by    way    of    damages    when  hands), 
the   like    amount   can   be    recovered 


^  178  EQUITY    JURISPRUDENCE.  234 

cover  for  work  and  labor  done  for  the  benefit  of  trust  es- 
tates, a  statute  having  authorized  suits  at  law  for  the  col- 
lection of  such  claims ;  "^  a  suit  by  one  executor  against  his 
co-executor  to  recover  the  plaintiff's  share  of  the  com- 
pensation allowed  by  the  probate  court  and  retained  by 
the  defendant ;  ^  a  suit  by  a  judgment  creditor  of  a  de- 
cedent, against  the  administrator,  to  recover  the  amount 
of  his  judgment ;  ^  where  a  mere  pecuniary  judgment  at 
law  against  the  debtor  would  be  useless,  because  he  is  in- 
solvent, or  is  a  non-resident  of  the  state,  or  has  absconded, 
or  for  any  other  similar  reason;  ^^  suit  by  grantee  of  land 
in  possession,  to  recover  back  the  purchase  price,  on  ac- 
count of  the  failure  of  the  grantor's  title;  ^^  suit  by  a  ward 
against  his  guardian  and  sureties  on  the  guardian's 
bond;  12  a  suit  to  establish  and  enforce  a  mere  personal 
debt  of  the  defendant  as  a  lien  on  his  lands ;  ^^  and  in 
Massachusetts  it  is  held  that  no  suit  can  be  maintained  by 
the  vendor  against  the  purchaser  to  compel  the  specific 
performance  of  a  contract  for  the  sale  of  land,  when  the 
only  relief  given  by  the  decree  is  the  recovery  of  the  un- 
paid purchase  price,  on  the  ground  that  exactly  the  same 
relief  can  always  be  obtained  by  an  action  at  law.^"*     This 

§  178,  7  Askew  v.  Myriek,  54  Ala.  30. 

§  178,  8  Bellamy  v.  Hawkins,  16  Fla.  733.  An  action  for  money  had 
and  received  would  give  a  perfect  remedy. 

§  178,  9  Collins  V.  Stephens,  58  Ga.  284.  An  action  at  law  against  the 
administrator  and  his  sureties  on  his  bond  would  give  complete  relief  if 
he  failed  to  pay  the  judgment. 

§  178,  10  Mnnegan  v.  Fernandina,  15  Fla.  379,  21  Am.  Rep.  292;  Reese 
V.  Bradford,  13  Ala.  837  (defendant  out  of  the  state) ;  Heilman  v.  Union 
Canal  Co.,  37  Pa.  St.  100,  104  (insolvency  of  defendant)  ;  Meres  v.  Chris- 
man,  7  B.  Mon.  422  (defendant  has  absconded)  ;  Echols  v.  Hammond,  30 
Miss.  177  (defendant  non-resident  or  absconding). 

§178,  11  Anderson  v.  Lincoln,  5  How.  (Miss.),  279,  284;  Abbott  v. 
Allen,  2  Johns.  Ch.  519,  7  Am.  Dec.  554;  as  to  when  the  grantee  may  sue 
in  equity,  see  Waddell  v.  Beach,  9  N.  J.  Eq.  793,  796. 

§  178,  12  Lawson  v.  Davis,  7  Gill,  345. 

§  178,  13  Perkins  v.  Perkins,  16  Mich.  162,  167;  Bennett  v.  Nichols,  12 
Mich.  22. 

§  178,  14  Jones  v.  Newhall,  115  Mass.  244,  15  Am.  Rep.  97. 


235  THE    CONCURRENT    JURISDICTION.  §  179 

conclusion,  however,  rests  upon  the  statutory  limitations  of 
the  jurisdiction  in  Massachusetts,  and  is  opposed  to  the 
general  doctrines  of  equity  jurisprudence. 

§  179.  Cognizance  First  Taken  by  a  Law  Court.a — In 
further  limitation  upon  the  power  of  equity  to  interfere 
where  the  primary  rights,  interests,  or  estates  are  legal, 
the  doctrine  is  well  settled  that  when  the  jurisdictions  of 
law  and  of  equity  are  concurrent,  the  one  which  first  takes 
actual  cognizance  of  any  particular  controversy  ordinarily 
becomes  thereby  exclusive.^  If,  therefore,  the  subject- 
matter  or  primary  right  or  interest,  although  legal,  is  one 
of  a  class  which  may  come  within  the  concurrent  jurisdic- 
tion of  equity,  and  an  action  at  law  has  already  been  com- 
menced, a  court  of  equity  will  not,  unless  some  definite 
and  sufficient  ground  of  equitable  interference  exists,  en- 
tertain a  suit  over  the  same  subject-matter  even  for  the 
purpose  of  granting  reliefs  peculiar  to  itself,  such  as  can- 
cellation, injunction,  and  much  less  to  grant  the  same  kind 
of  relief  which  can  be  obtained  by  the  judgment  at  law. 
The  grounds  which  will  ordinarily  prevent  the  application 
of  this  doctrine,  and  will  permit  the  exercise  of  the  equi- 
table jurisdiction  in  such  cases,  are  the  existence  of  some 
distinctively  equitable  feature  of  the  controversy  which 
cannot  be  determined  by  a  court  of  law,  or  some  fraudulent 
or  otherwise  irregular  incidents  of  the  legal  proceedings 
sufficient  to  warrant  their  being  enjoined,  or  the  necessity 
of  a  discovery,  either  of  which  grounds  would  render  the 
legal  remedy  inadequate.  This  rule  results  in  part,  in  the 
United  States,  from  the  provisions  of  the  national  and 
state  constitutions  securing  the  right  to  a  jury  trial  which 

§179,   (a)    This   paragraph   of   the  v.   Miller,   59    W.   Va.   36,   52    S.    E. 

text  is   cited   and   followed   in   Ger-  995;    Dille    v.    Longwell,    169    Iowa, 

man    v.    Browne,    137    Ala.    429,    34  686,  148  N.  W.  637;  Lynch  v.  Schcm- 

South.  985;  Sprigg  v.  Common-  mel,  176  Iowa,  499,  155  N.  W.  1019. 
wealth  Title  Ins.  &  Tr.  Co.,  206  Pa.  §  179,   (b)    The   text   is   quoted   in 

St.  548,  56  Atl.  33;  Druon  v.  Sulli-  Connell  v.  Yost,   62   W.   Va.   66,   57 

van,  66  Vt.  609,  30  Atl.  98;  Bruncr  S.  E.  299. 


§  179  EQUITY    JURISPRUDENCE.  23 G 

belongs  especially  to  the  machinery  of  legal  actions. ^  *^  In 
cases  which  are  brought  to  procure  some  distinctively  equi- 
table remedy,  and  which  therefore  belong  to  the  exclusive 

§  179,  1  Hipp  V.  Babin,  19  How.  271;  Insurance  Co.  v.  Bailey,  13  Wall. 
616;  Oelrichs  v.  Spain,  15  Wall.  211,  228;  Grand  Chute  v.  Winegar,  15 
Wall.  373;  Smith  v.  Melver,  9  Wheat.  532;  Crane  v.  Bunnell,  10  Paige, 
333;  Bank  of  Bellows  Falls  v.  Rutland  &  B.  R.  R.,  28  Vt.  470,  477; 
Stearns  v.  Steams,  16  Mass.  167,  171;  Mallett  v.  Dexter,  1  Curt.  178; 
Winn  V.  Albert,  2  Md.  Ch.  42;  Nelson  v.  Dunn,  15  Ala.  501;  Gould  v. 
Hayes,  19  Ala.  438;  Thompson  v.  Hill,  3  Serg.  167;  Bumpass  v.  Reams, 
1  Sneed,  595;  Merrill  v.  Lake,  16  Ohio,  373,  47  Am.  Dec.  377;  Mason  v. 
Piggott,  11  111.  85;  Ross  v.  Buchanan,  13  111.  55;  Hempstead  v.  Watkins, 
6  Ai-k.  317,  42  Am.  Dec.  696.  In  Grand  Chute  v.  Winegar,  15  Wall.  373, 
an  action  at  law  had  been  brought  on  certain  bonds  issued  by  the  municipal 
corporation,  and  the  defense  was  set  up  that  they  had  been  issued  fraudu- 
lently, and  without  authority,  etc.  While  said  action  was  pending,  the 
corporation  brought  the  suit  in  equity,  setting  up  the  same  fraud  and 
want  of  authority,  and  praying  that  the  bonds  might  be  surrendered  up 
and  canceled.  The  court  held  that  although  equity  might  have  a  concur- 
rent jurisdiction,  still,  as  the  courts  of  law  had  first  taken  cognizance  of 
the  matter,  and  there  was  nothing  to  show  that  the  defense  set  up,  if 
established,  would  not  be  an  adequate  remedy,  a  court  of  equity  could  not 
interfere  even  to  grant  its  peculiar  relief  of  cancellation.  Hunt,  J.,  thus 
states  the  general  doctrine :  "It  is  an  elementary  principle  of  equity,  that 
when  full  and  adequate  relief  can  be  obtained  in  a  suit  at  law,  a  suit  in 
equity  cannot  be  maintained.  .  .  .  And  the  result  of  the  argument  is,  that 
whenever  a  court  of  law  is  competent  to  take  cognizance  of  a  right,  and 

§  179,  (c)  Equity  will  not  with-  Newman  v.  Commercial  Nat.  Bank, 
draw  the  litigation  concerning  an  156  111.  530,  41  N.  E.  156;  Erste 
accounting  from  a  common-law  Sokolower  Congregation  v.  First 
court,  unless  it  clearly  appears  that  United,  etc.,  Verein,  32  Misc.  Eep. 
such  course  is  necessary,  in  order  269,  66  N.  Y.  Supp.  356;  Spiller  v. 
that  complete  justice  may  be  done,  Wells,  96  Va.  598,  70  Am.  St.  Rep. 
but  will  do  so  when  the  account  is  878,  32  S.  E.  46;  McCalla  v.  Beadle- 
complicated  or  intricate,  and  in  such  ston,  17  R.  I.  20,  20  Atl.  11;  Wilkin- 
case  will  restrain  the  legal  action.  son  v.  Stuart,  74  Ala.  198.  See, 
Ely  V.  Crane,  37  N.  J.  Eq.  160,  564.  further,  Hall  v.  Ames,  182  Fed.  1008; 
See,  also,  Casperson  v.  Casperson,  65  Hirsch  v.  Independent  Steel  Co.,  196 
N.  J.  L.  402,  47  Atl.  428;  Nash  v.  Fed.  104;  Biermann  v.  Guaranty 
McCathern,  183  Mass.  345,  67  N.  E.  Mut.  Life  Ins.  Co.,  142  Iowa,  341,  120 
323.  On  the  general  proposition,  see  N.  W.  963;  Prewett  v.  Citizens'  Na- 
Sweeny  v.  Williams,  36  N.  .1.  Eq.  tional  Bank,  66  W.  Va.  184,  135  Am. 
627;  Ely  v.  Crane,  37  N.  J.  Eq.  160;  St.  Hep.  1019,  66  S.  E.  231. 


237  THE   CONCUEEENT   JUEISDICTION.  §  179 

jurisdiction,  the  doctrine  must  be  regarded  as  merely  regu- 
lating the  exercise  of  that  jurisdiction,  but  in  the  cases 
which  belong  to  the  concurrent  jurisdiction  it  must  be  re- 
garded as  one  of  the  elements  which  determine  the  very 
existence  of  such  jurisdiction. 

has  power  to  proceed  to  a  judgment  which  affords  a  plain,  adequate,  and 
complete  remedy,  without  the  aid  of  a  court  of  equity,  the  plaintiff  must 
proceed  at  law,  because  the  defendant  has  a  constitutional  right  to  a  trial 
by  jury."  In  Insurance  Co.  v.  Bailey,  13  Wall.  616,  an  action  at  law  had 
been  brought  on  a  policy  of  life  insurance  by  the  executors  of  the  person 
assured,  and  the  company  set  up  the  defense  that  the  policy  had  been 
obtained  by  means  of  fraudulent  representations.  The  company  then 
commenced  this  suit  in  equity  to  have  the  policy  canceled  on  the  same 
ground.  The  court  held  that  the  equity  suit  could  not  be  maintained,  be- 
cause the  jurisdiction  of  the  law  had  first  attached,  and  the  question  of 
fraud  could  be  fully  tried,  and  the  company  obtain  complete  relief,  in  the 
legal  action  then  pending.  In  Bank  of  Bellows  Falls  v.  Rutland,  etc., 
R.  R.,  28  Vt.  470,  an  action  at  law  had  been  brought  against  the  bank  to 
recover  damages  for  the  taking  of  certain  property  under  an  execution 
and  judgment  against  the  railway  company,  which  the  company  had  previ- 
ously conveyed  to  the  plaintiff  in  said  action.  The  bank  thereupon  com- 
menced this  suit  in  equity,  praying  to  have  such  conveyance  set  aside  and 
canceled  on  the  ground  of  its  being  fraudulent  as  against  creditors  of  the 
railway,  and  to  have  the  action  at  law  enjoined.  The  court  held  it  to  be 
a  well-settled  doctrine  that  in  all  cases  of  concurrent  jurisdiction  the 
cause  belongs  exclusively  to  the  tribunal  which  first  takes  cognizance  of  it; 
that  the  question  whether  the  conveyance  was  fraudulent  could  be  decided 
in  the  legal  action,  and  if  the  defense  of  fraud  was  made  out  therein,  the 
bank  would  obtain  a  complete  relief,  and  that  no  special  ground  was  shown 
why  this  rule  should  not  apply  in  the  present  case.  In  Crane  v.  Bunnell, 
10  Paige,  333,  an  action  at  law  had  been  brought  on  a  note  payable  in 
chattels,  and  the  defense  was  set  up  that  the  note  had  been  procured  by 
fraudulent  representations.  The  defendant  then  filed  this  bill  in  chancery, 
alleging  the  same  fraud  and  praying  to  have  the  note  canceled  and  the 
action  at  law  enjoined.  The  court,  admitting  that  it  had  a  concurrent 
jurisdiction  in  cases  of  fraud,  and  might  entertain  a  suit  for  discovery 
and  relief,  held  that  there  was  a  material  difference  when  the  suit  was 
commenced  after  the  action  at  law.  In  such  a  suit  the  complainant  might 
perhaps  be  entitled  to  a  discovery;  but  he  could  not  have  the  trial  and 
decision  of  the  controversy  removed  from  the  court  of  law  which  had  first 
taken  cognizance  of  it,  and  in  which  the  parties  could  have  the  benefit  of 
a  jury  trial. 


S;  ISO  EQUITY    JURISPRUDENCE,  238 

§  180.  General  Principle  —  Concurrent  Jurisdiction 
Exists. — The  propositions  contained  in  the  preceding 
paragraphs  are  all  negative  in  their  form;  I  shall  now  state 
the  rules  which  affirmatively  define  the  extent  and  limits 
of  the  concurrent  jurisdiction.  The  doctrine,  in  its  most 
general  and  comprehensive  form,  admits  the  existence  of 
the  concurrent  jurisdiction  over  all  cases  in  which  the 
remedy  at  law  is  not  certain,  complete,  and  sufficient.  The 
fact  that  there  is  a  legal  remedy  is  not  the  criterion;  that 
legal  remedy,  both  in  respect  to  its  final  relief  and  its 
modes  of  obtaining  the  relief,  must  be  as  efficient  as  the 
remedy  which  equity  would  confer  under  the  same  circum- 
stances, or  else  the  concurrent  jurisdiction  attaches.^  * 
In  applying  this  doctrine,  the  ordinary  instances  of  the 
concurrent  jurisdiction  in  which  the  final  relief  consists  in, 
the  obtaining  possession  of  a  specific  parcel  of  land,  sub- 
stantially the  same  as  would  be  conferred  by  a  court  of 
law,  are  few  and  well  defined;  namely,  the  partition  of 

§  180,  1  Some  of  the  cases  in  which  this  rule  is  laid  down,  and  in  which 
the  equitable  jurisdiction  was  spoken  of  by  the  court  as  being  '^concurrent/' 
really  belonged  to  the  exclusive  jurisdiction,  since  the  reliefs  sought  for  or 
obtained  were  those  administered  alone  by  equity;  but  the  doctrine  applies 
most  directly  to  the  concurrent  jurisdiction,  and  is  in  fact  a  fundamental 
element  of  its  existence;  when  applied  to  cases  coming  within  the  exclusive 
jurisdiction,  the  doctrine  should  be  regarded  merely  as  one  of  the  general 
rules  which  control  the  administration  of  its  purely  equitable  reliefs :  Cur- 
rier V.  Rosebrooks,  48  Vt.  34,  38;  Ii-win  v.  Irwin,  50  Miss.  363.  368; 
Martin  v.  Tidwell,  36  Ga.  332,  345 ;  Walker  v.  Morris,  14  Ga.  323 ;  Keeton 
V.  Spradling,  13  Mo.  321;  State  v.  McKay,  43  Mo.  594,  598;  Holland  v. 
Anderson,  38  Mo.  55,  58;  Livingston  v.  Livingston,  4  Johns.  Ch.  287,  290, 
291,  8  Am.  Dec.  562;  Wiswall  v.  McGovern,  2  Barb.  270;  Pope  v.  Solo- 
mons, 36  Ga.  541,  545 ;  Morris  v.  Thomas,  17  111.  112,  115 ;  Hunt  v.  Dan- 
f orth,  2  Curt.  592,  603 ;  Carr  v.  Silloway,  105  Mass.  543,  549 ;  Richardson 
V.  Brooks,  52  Miss.  118,  123;  Southampton  Dock  Co.  v.  Southampton,  etc., 
Board,  L.  R.  11  Eq.  254;  South  Eastern  R'y  v.  Brogden,  3  Macn.  &  G. 
8,  and  cases  cited ;  Boyce's  Executors  v.  Grundy,  3  Pet.  210,  215 ;  Watson 
v.  Sutherland,  5  Wall.  74,  78;  Dows  v.  Chicago,  11  Wall.  108,  110. 

§180,  (a)  The  text  is  quoted  in  Mack  t.  Latta  (N.  Y.),  71  N".  E.  97, 
by  Parker,  C.  J. 


239  THE    CONCURRENT    JURISDICTION.  §  181 

land,  the  assignment  of  dower,  and  the  settlement  of  dis- 
puted boundaries.  But  in  addition  to  these  three  classes, 
the  concurrent  jurisdiction  embraces  other  cases  involving 
the  ownership  or  enjoyment  of  lands,  and  a  relief  which  is 
substantially  the  recovery  of  possession  will  be  conferred, 
where  the  facts  and  circumstances  are  special,  and  the 
remedy  at  law  would  be  doubtful,  incomplete,  or  insuffi- 
cient.2  The  same  is  true  with  respect  to  pecuniary  relief. 
While  the  various  instances  in  which  equity  will  decree  a 
recovery  of  money  as  the  final  remedy,  and  which  consti- 
tute a  most  important  part  of  its  concurrent  jurisdiction, 
are' well  ascertained  and  form  a  settled  and  certain  reme- 
dial system,  they  by  no  means  exhaust  that  jurisdiction; 
it  extends  to  and  embraces  all  cases  of  legal  primary 
rights  and  causes  of  action  for  which  the  law  furnishes  no 
certain,  adequate,  and  complete  remedy.^ 

§  181.  Effect  of  a  Partial  Jurisdiction. — The  concurrent 
jurisdiction  of  equity  to  grant  remedies  which  are  legal 
in  cases  which  might  come  within  the  cognizance  of  the 
law  courts  is  materially  affected  by  the  operation  of  two 
important  principles,  which  are  now  merely  stated,  and 
which  will  be  more  fully  discussed  in  a  subsequent  section. 
The  first  of  these  principles  is,  that  when  a  court  of  equity 
has  jurisdiction  over  a  cause  for  any  purpose,  it  may  re- 
tain the  cause  for  all  purposes,  and  proceed  to  a  final  de- 
termination of  all  the  matters  at  issue.^     For  this  reason, 

§  180,  2  See  Respass  v.  Zorn,  42  Ga.  389 ;  Watkins  v.  Owens,  47  Miss. 
593,  598;  Academy  of  Visitation  v.  Clemens,  50  Mo.  167;  Otley  v.  Havi- 
land,  36  Miss.  19. 

§  180,  3  Franklin  Ins.  Co.  v.  McCrea,  4  G.  Greene,  229  (decreeing  pay- 
ment of  the  amount  due  on  a  policy  of  insurance  after  a  reformation  of 
it)  ;  Hunt  v.  Danforth,  2  Curt.  592,  603  (recovery  by  a  married  woman 
of  money  left  to  her  separate  use)  ;  Gay  v.  Edwards,  30  INIiss.  21S,  230 
(where  several  claimants  are  separately  interested  in  the  same  fund,  tlieir 
shares  unascertained) ;  Edsell  v.  Briggs,  20  Mich.  429,  432;  Carr  v.  Sillo- 
way,  105  Mass.  543.    , 

§  181,  (a)  The  text  is  quoted  in  L.  R.  A.  1917E,  633,  162  N.  W.  399, 
Wade     V.     Major,     36     N.     D.     331,       dissenting  opinion. 


§  181  EQUITY    JURISPRUDENCE.  240 

if  the  controversy  contains  any  equitable  feature  or  re- 
quires any  purely  equitable  relief  which  would  belong  to 
the  exclusive  jurisdiction,  or  involves  any  matter  pertain- 
ing to  the  concurrent  jurisdiction,  by  means  of  which  a 
court  of  equity  would  acquire,  as  it  were,  a  partial  cog- 
nizance of  it,  the  court  may  go  on  to  a  complete  adjudica- 
tion, and  may  thus  establish  purely  legal  rights  and  grant 
legal  remedies  which  would  otherwise  be  beyond  the  scope 
of   its    authority.^  ^     The    equitable    feature    or   incident 

§181,  1  Oelrichs  v.  Spain,  15  Wall.  211,  228;  Hamilton  v.  Cummings, 
1  Johns.  Ch.  517;  Hawley  v,  Cramer,  4  Cow.  717;  Crane  v.  Bunnell,  10 
Paige,  333;  Rathbone  v.  Warren,  10  Johns.  587,  596;  King  v.  Baldwin,  17 
Johns.  384,  8  Am.  Dec.  415 ;  Bradley  v.  Bosley,  1  Barb.  Ch.  125 ;  Billups 
V.  Sears,  5  Gratt.  31,  50  Am.  Dec.  105;  Rust  v.  Ware,  6  Gratt.  50,  52 
Am.  Dec.  100;  Parker  v.  Kelly,  10  Smedes  &  M.  184;  Jesus  College  v. 
Bloom,  3  Atk.  262,  263,  Amb.  54;  Ryle  v.  Haggle,  1  Jacob  &  W.  234,  237; 
Corporation  of  Carlisle  v.  Wilson,  13  Ves.  276,  278,  279 ;  Adley  v.  Whit- 
stable  Co.,  17  Ves.  315,  324;  Pearce  v.  Creswick,  2  Hare,  286,  296;  Mc- 
Kenzie  v.  Johnston,  4  Madd.  373;  Martin  v.  Tidwell,  36  Ga.  332,  345; 
Walker  v.  Morris,  14  Ga.  323 ;  Keeton  v.  Spradling,  13  Mo.  321 ;  State  v. 
McKay,  43  Mo.  594,  598;  Pope  v.  Solomons,  36  Ga.  541,  545;  cases  of 

§181,  (b)  Quoted  in  Carpenter  v.  25  Or.  119,  35  Pac.  174;  Installment 
Osborn,  102  N.  Y.  561,  7  N.  B.  823;  B.  &  L.  Co.  v.  Wentworth,  1  Wash. 
Stickney  v.  Goudy,  132  111.  213,  23  St.  467,  25  Pac.  298;  Freer  v.  Davis, 
N.  E.  1034;  Wigging  v.  Williams,  36  52  W.  Va.  1,  94  Am.  St.  Eep.  895, 
Fla.  637,  30  L.  K.  A.  754,  18  South.  59  L.  R.  A.  556,  43  S.  E.  164,  dissent- 
859;  U.  S.  V.  Union  Pac.  E'y.  Co.,  ing  opinion;  Keith  v.  Henkleman, 
160  U.  S.  1,  16  Sup.  Ct.  190;  Chrislip  68  111.  App.  623;  Richi  v.  Chat- 
V.  Teter,  43  W.  Va.  356,  27  S.  E.  tanooga  Brewing  Co.,  105  Tenn.  651, 
288;  Ames  v.  Ames,  75  Neb.  473,  58  S.  W.  646;  Hagan  v.  Continental 
106  N.  W.  584.  Cited  with  approval  Nat.  Bank  (Mo.),  81  S.  W.  171. 
in  Lynch  v.  Metropolitan  El.  E'y.  Cited,  also,  in  these  recent  cases: 
Co.,  129  N.  Y.  274,  26  Am.  St.  Rep.  Paine  v.  Germantown  Trust  Co.,  136 
523,  15  L.  R.  A.  287,  29  N.  E.  315;  Fed.  527.  69  C.  C.  A.  303;  McMul- 
Chambers  v.  Cannon,  62  Tex.  293;  len  Lumber  Co.  v.  Strother,  136  Fed. 
Walters  v.  Farmers'  Bank,  76  Va.  295,  69  C.  C.  A.  433  (court  having 
12;  Blair  v.  Smith,  114  Ind.  114,  5  jurisdiction  for  accounting,  full  re- 
Am.  St.  Eep.  593,  15  N.  E.  817;  lief  given,  though  some  of  the 
Broadis  v.  Broadis,  86  Fed.  951;  breaches  of  contract  might  have 
Keith  V.  Henkleman,  173  111.  137,  been  tried  at  law) ;  Norton  v.  Colusa 
50  N.  E.  692;  Bank  of  Stockham  v.  P.  M.  &  S.  Co.  (C.  C.  Mont),  167 
Alter,  61  Neb.  359,  85  N,  W.  300;  Fed.  202  (damages  in  connection 
Fleishner  v.  Citizens'  R.  E.  &  I.  Co.,  with   injunction    against    nuisance) ; 


241  THE    CONCURRENT    JURISDICTION.  §  181 

which  most  frequently  draws  a  cause  completely  within 
the  cognizance  of  equity,  and  enables  the  court  to  proceed 
to  a  full  adjudication  of  all  the  issues  and  to  a  grant  of  all 
necessary  reliefs,  legal  as  well  as  equitable,  is  the  auxiliary 
remedy  of  a  discovery.  It  should  be  carefully  noticed, 
however,  that  the  proposition  is  not  stated  in  absolute 

diseovei-y  and  suit  retained  for  complete  relief;  Handley's  Ex'r  v.  Fitz- 
hugh,  1  A.  K.  Marsh.  24;  Sanborn  v.  Kittredge,  20  Vt.  632,  50  Am.  Dec. 
58;  but  see  Little  v.  Cooper,  10  N.  J.  Eq.  273,  275,  and  Brown  v.  Edsall, 
9  N.  J.  Eq.  25G;  Clark  v.  White,  12  Pet.  178,  188  (in  a  suit  to  compel 
delivery  of  instruments  under  an  agreement,  court  went  on  and  decreed 
defendant  to  repay  money  paid  out  by  the  plaintiff) ;  Franklin  Ins.  Co. 
V.  McCrea,  4  G.  Greene,  229  (in  suit  to  reform  a  policy  of  insurance,  court 
went  on  and  ordered  payment  of  the  amount  due  on  the  policy  as  re- 
formed) ;  Mays  v.  Taylor,  7  Ga.  238,  244  (court  went  on  and  decreed 
payment  of  money,  although  an  action  at  law  would  lie  for  a  breach  of 
contract) ;  Brooks  v.  Stolley,  3  McLean,  523,  527  (in  a  suit  for  the  in- 
fringement of  a  patent  right,  the  court  may  determine  matters  not 
originally  within  its  jurisdiction,  and  may  grant  purely  legal  remedies 
therefor;  viz.,  the  payment  of  sums  of  money  stipulated  under  a  contract 
for  the  use  of  the  patent)  :  Souder's  Appeal,  57  Pa.  St.  498,  502;  Zetelle 
V.  Myers,  19  Gratt.  62  (suit  in  equity  must  include  the  entire  transaction; 
plaintiff  cannot  divide  it,  and  sue  in  equity  for  a  part  and  at  law  for  a 
part) ;  cases  where  damages  may  be  awarded  in  a  suit  for  specific  per- 
formance: Corby  v.  Bean,  44  Mo.  379;  Cuff  v.  Borland,  55  Barb.  481; 
De  Bemer  v.  Drew,  39  How.  Pr.  466.  See  also  Boyd  v.  Hunter,  44  Ala. 
705  (decreeing  payment  of  rent  due  by  a  tenant) ;  People  v.  Chicago,  53 
111.  424  (in  suit  to  enjoin  certain  unlawful  acts,  all  rights  were  settled 
and  remedies  given,  although  legal) ;  Gillian  v.  Chancellor,  43  Miss.  437,  5 
Am.  Rep.  498  (final  settlement  of  a  decedent's  estate) ;  Carlisle  v.  Cooper, 
21  N.  J.  Eq.  576  (complete  relief  in  ease  of  a  private  nuisance). 

Cree  v.  Lewis,  49  Colo.  186,  112  Pae.  418,  82  Atl.  741  (injunction  against 

326;  Cowan  v.  Skinner,  52  Fla.  486,  action  at  law,  case  retained  for  legal 

11    Ann.    Cas.    452,    42    South.    730  relief) ;  Woolfolk  v.  Graves,  113  Va. 

(damages  in  connection  with  injunc-  182,    69    S.    E.    1039,    73    S.    E.    721 

tion  to  restrain  trespass) ;   Coleman  (injunction   against   cutting  of  tim- 

V.    Connolly,   242    111.    574,    134   Am.  ber,  case  retained  to  determine  title 

St.  Rep.  347,  90  N.  E.  278  (account-  to  the  land);  Steinman  v.  Clinchfield 

ing    of    rents    as    incident    to    parti-  Coal  Corp.  (Va.),  93  S.  E.  684.     For 

tion) ;    Gantz   v.   Gease,  82   Ohio   34,  a  full  examination  of  this  doctrine, 

91  N.  E.  872;   Fife  v.   Cate,   85   Vt.  see    posf,  §§  231-242. 
1—16 


§  181  EQUITY    JURISPRUDENCE.  242 

terms,  as  though  the  rule  were  peremptory;  it  is  rather 
permissive,  and  is  by  no  means  universal  in  its  operation.^ 
Immediately  derived  from  this  principle,  as  a  corollary  or 
particular  phase  of  it,  is  the  doctrine  that  the  concurrent 
jurisdiction  of  equity  may  be  exercised  over  matters  and 
causes  of  action  which  are  legal,  and  by  the  granting  of 
legal  remedies,  in  order  to  avoid  a  multiplicity  of  suits. 
Where  numerous  actions  at  law  are  brought,  or  are  about 
to  be  brought,  either  by  the  same  or  by  different  parties, 
all  involving  and  requiring  the  decision  of  the  same  ques- 
tions of  law  or  of  fact,  so  that  the  determination  of  one 
would  not  legally  affect  the  others,  a  court  of  equity  may, 
in  order  to  do  full  justice  to  the  litigants  and  to  avoid 
great  expense,  take  cognizance  and  adjudicate  upon  all 
the  rights  and  confer  all  the  remedies  in  one  suit,  although 
both  the  primary  rights  and  the  final  reliefs  are  legal. 
This  instance  of  the  concurrent  jurisdiction  plainly  rests 
upon  the  arbitrary,  unyielding,  and  insufficient  modes  of 
procedure  in  actions  at  law,  and  in  the  ample  power  of  the 
equitable  procedure  to  adapt  its  judicial  proceedings  and 
its  final  reliefs  to  the  circumstances  of  each  case,  by  bring- 
ing in  all  parties  interested  in  a  controversy,  no  matter 
how  unequal  their  interests  may  be,  and  by  awarding  com- 
plete relief  no  matter  how  conditional  and  limited,  to  all 
these  parties  by  means  of  one  suit  and  decree. ^ 

§  181,  2  See  post,  §§  223-229,  where  the  doctrine  is  fully  examined. 

§181,  3  Huntington  v.  Nicoll,  3  Johns.  566;  Livingston  v.  Livingston 
6  Johns.  Ch.  497,  10  Am.  Dec.  353;  Eldridge  v.  Hill,  2  Johns.  Ch.  261 
West  V.  Mayor  of  N.  Y.,  10  Paige,  539;  New  York  &  N.  H.  R.  R.  v 
Schuyler,  17  N.  Y.  592,  34  N.  Y.  30 ;  McHenry  v.  Hazard,  45  N.  Y.  580 
Thompson  v.  Engle,  4  N.  J.  Eq.  271 ;  Hughlett  v.  Harris,  1  Del.  Ch.  349 
Youngblood  v.  Sexton,  32  Mich.  406,  20  Am.  Rep.  654;  Mayor  of  York 
V.  Pilkington,  1  Atk.  282,  283,  per  Lord  Hardwicke;  Weale  v.  West  Mid- 
dlesex, etc.,   Co.,  1  Jacob  &  W.   358,  369,  per  Lord  Eldon;   Whaley  v. 
Dawson,  2  Schoales  &  L.  367,  370,  per  Lord  Redesdale;  Super\dsors  v. 
Deyoe,  77  N.  Y.  219,  225. 


243  THE    CONCURRENT    JUEISDICTION.  §  182 

§  182.  Effect  of  Jurisdiction  Subsequently  Acquired  by 
the  Law  Courts. ^ — The  second  principle,  which  is  most  im- 
portant in  its  effects  upon  the  modern  concurrent  juris- 
diction, is  the  following:  Whenever  equity  originally  ac- 
quired jurisdiction  over  any  particular  subject-matter, 
right,  or  interest,  because  the  law  either  did  not  recognize 
the  existence  of  the  right  or  interest,  or  could  not  furnish 
an  adequate  remedy  for  its  protection,  and  the  scope  of 
the  common  law  has  since  become  enlarged,  so  that  it  now 
not  only  admits  the  particular  primary  right  or  interest 
to  be  legal,  but  also  furnishes  a  legal  remedy  by  its  ac- 
tions, which  may  even  he  adequate  under  ordinary  circum- 
stances, still  the  equitable  jurisdiction  is  not  in  general 
thereby  destroyed  or  lessened,  although  it  is  made  to  be 
concurrent,  and  although  the  special  reasons  for  its  con- 
tinued exercise — namely,  the  inadequacy  of  the  legal 
remedy — may  no  longer  exist.  The  scope  of  the  law  and 
the  jurisdiction  of  the  law  courts  have  thus  been  enlarged 
in  two  different  modes.  Since  the  earlier  and  more  arbi- 
trary condition  of  the  law,  when  on  that  very  account  the 
equitable  jurisdiction  in  many  matters  took  its  origin,  the 
law  itself  has  gradually  and  by  the  progressive  judicial 
legislation  of  its  courts  adopted  and  incorporated  into  its 
jurisprudence,  and  thus  made  strictly  legal,  a  multitude 
of  doctrines  and  rules  which  were  originally  purely  equi- 
table; and  especially  by  the  invention  of  the  theory  of 
implied  contracts  or  obligations,  and  the  enormous  de- 
velopment of  its  actions  ex  cequo  et  bono, — ''assumpsit" 
and  ''case," — it  is  now  enabled  to  take  cognizance  of  a 
great  variety  of  subject-matters,  primary  rights,  and 
causes  of  action,  and  to  confer  its  pecuniary  remedies, 
which  are  at  least  reasonably  complete  and  sufficient, 
under  circumstances  and  in  judicial  controversies  which 
formerly  would  come  alone  within  the  equitable  jurisdic- 

§  182,  (a)  See  post,  §§  276-281,  generally,  in  Wheeler  v.  Ockcr  & 
where  this  subject  is  more  fully  tlis-  Ford  Mfg.  Co.,  162  Mich.  204,  127 
russed.     This     paragraph     is     cited,       N.   W.  332. 


§  182  EQUITY    JURISPRUDENCE.  244 

tion.  In  this  class  of  cases,  where  the  concurrent  author- 
ity of  the  law  has  resulted  from  the  action  of  the  law  courts 
in  adopting  equitable  doctrines,  and  not  from  the  com- 
pulsory action  of  the  legislature,  the  general  principle 
operates  without  exception,  that  the  jurisdiction  of  equity 
still  remains  unaffected  and  unabridged,  extending  to  the 
same  rights,  interests,  and  causes  of  action,  although  they 
are  now  legal,  and  granting  the  same  remedies,  although 
they  are  legal  in  their  nature,  and  substantially  identical 
with  those  given  by  the  law  courts.  The  courts  of  law 
have  no  power,  by  their  own  judicial  legislation,  and  with- 
out any  statutory  interference,  to  abolish,  curtail,  or 
modify  the  jurisdiction  which  has  once  been  acquired 
by  equity.  The  equitable  jurisdiction  therefore  exists, 
although  the  reasons  for  its  exercise  have  nearly  or  quite 
disappeared,  and  the  instances  of  its  exercise  in  actual 
practice  have  perhaps  been  greatly  lessened  in  number.^  ^ 
The  second  mode  of  enlarging  the  jurisdiction  at  law  has 
been  by  statute.  The  legislature  has  interfered,  and  has 
directly  created  a  jurisdiction  at  law  over  particular 
subject-matters,  which  before  did  not  exist  in  any  degree, 
or  has  amplified  and  extended  it  where  it  was  before  par- 
tial and  incomplete.     In  these  instances  of  statutory  juris- 

§  182,  1  Collins  V.  Blantern,  2  Wils.  341,  350,  per  Wilmot,  C.  J. ;  At- 
kinson V.  Leonard,  3  Brown  Ch.  218,  224;  Harrington  v.  Du  Chatel,  1 
Brown  Ch.  124;  Bromley  v.  Holland,  7  Ves.  3,  19-21;  Kemp  v.  Prior,  7 
Ves.  237,  249,  250;  East  India  Co.  v.  Boddam,  9  Ves.  464,  46S,  469; 
Ex  parte  Greenway,  6  Ves.  812;  Varet  v.  N.  Y.  Ins.  Co.,  7  Paige,  560,  568, 
per  Walworth,  C;  King  v.  Baldwin,  2  Johns.  Ch.  554,  17  Johns.  384,  8 
Am.  Dec.  415 ;  Rathbone  v.  Warren,  10  Johns.  587 ;  Viele  v.  Hoag,  24  Vt. 
46;  Wells  v.  Pierce,  27  N.  H.  503,  512,  513;  Smith  v.  Hays,  1  Jones  Eq. 
321;  Miller  v.  Gaskins,  1  Smedes  &  M.  524;  Burton  v.  Hynson,  14  Ark. 
32 ;  Eorce  v.  City  of  Elizabeth,  27  N.  J.  Eq.  408 ;  People  v.  Houghtaling, 
7  Cal.  34S,  351;  Heath  v.  Derry  Bk.,  44  N.  H.  174;  Irick  v.  Black,  17 
N.  J.  Eq.  189,  199. 

§  182,   (b)    The    text    is    cited    in  wlioro    a    defense,    originally    equi- 

Hoge  V.  Fidelity  Loan  &  Trust  Co.  table,  has  become  legally  cognizable, 

(Va.),  48  S.  E.  494,  limiting  the  ex-  and  a  judgment  is  sought  to  be  en- 

ercise  of  this  principle  in  the  case  joined   because   of   such   defense. 


245  THE    CONCURRENT    JURISDICTION.  §  182 

diction  at  law,  the  general  principle  above  stated  is  not  so 
absolute  in  its  operation,  although  the  statutes,  so  far  as 
they  affect  and  tend  to  abridge  the  pre-existing  jurisdic- 
tion of  equity,  are  very  strictly  construed.  The  following 
conclusions,  however,  are  sustained  by  the  weight  of  judi- 
cial authority:  Whenever  the  statutes  conferring  the  new 
jurisdiction  upon  the  law  courts  are  permissive  only,  or 
whenever  they  not  only  contain  no  express  prohibitory 
language,  but  also  do  not  indicate,  from  all  their  provisions 
taken  together,  any  clear  intent  to  restrict  the  equitable 
jurisdiction,  that  jurisdiction  remains  unaffected,  and  may 
still  be  exercised,  even  though  the  rights  protected  and 
the  remedies  conferred  have  by  the  statutes  been  made 
legal,  and  a  relief  ordinarily  sufficient,  even  amply  sufficient 
and  complete,  may  be  obtained  through  the  actions  at 
law.2  c    But  the  effect  depends  upon  the  legislative  intent. 

§182,  2  Lane  v.  Marshall,  1  Heisk.  30,  34;  State  v.  Alder,  1  Heisk. 
543,  547.  As  examples,  statutes  authorizing  a  party  to  any  action  to  call 
the  opposite  party  as  a  witness  have  been  held  not  to  deprive  equity  of  its 
jurisdiction  to  entertain  suits  for  discovery:  Cannon  v.  LIcNab,  48  Ala. 
99;  Millsaps  v.  Pfeiffer,  44  Miss.  805;  per  contra,  Riopelle  v.  Doellner, 
26  Mich.  102,  and  Hall  v.  Joiner,  1  S.  C.  186.  And  it  has  been  held 
that  statutes  giving  law  courts  jurisdiction  to  grant  some  special  relief 
in  cases  of  fraud  or  mistake  did  not  abridge  the  like  jurisdiction  which 
had  existed  in  equity:  Babcock  v.  McCamant,  53  111.  214,  217;  Dorsey  v. 
Reese,  14  B.  Mon.  127.  Statutes  authorizing  defenses  to  be  set  up  in 
bar  of  actions  at  law  on  gaming,  illegal,  and  usurious  contracts  have  not 
generally  been  regarded  as  affecting  the  pre-existing  jurisdiction  of  equity 
over  the  same  class  of  agreements :  Day  v.  Cummings,  19  Vt.  496 ;  Fanning 
V.  Dunham,  5  Johns.  Ch.  122,  9  Am.  Dec.  283;  Wistar  v.  McManes,  54 
Pa.  St.  318,  327,  93  Am.  Dec.  700;  West  v.  Beanes,  3  Har.  &  J.  568; 
Gough  V.  Pratt,  9  Md.  526;  Thomas  v.  Watts,  9  Md.  536;  White  v. 
Washington's  Ex'r,  5  Gratt.  645;  Lucas  v.  Waul,  12  Smedes  &  M.  157; 
Humphries  v.  Bartee,  10  Smedes  &  M.  282,  295.     Statutes  giving  juris- 

§182,   (c)  The  text  is  cited  to  tliis  may  demand  a  jury  trial  of  "issues 

effect  in  Black  v.  Boyd,  50  Ohio  St.  of   fact    arising   in    actions   for   the 

46,  33  N.  E.  207,  holding  that  equity  recovery  of  money  only."     The  text 

jurisdiction    in    matters    of    mutual  is    cited,    also,    in    Wilson    v.    State 

and     complicated     accounts     is     not  Water  Supply  Commission,  84  N.  J. 

abrogated  by  section  5130,  Rev.  Stat.  Eq.   150,  93  Atl.  732. 
Ohio,    providing    that    either    party 


§  182  EQUITY    JUEISPRUDENCE.  246 

If  the  statute  is  expressly  prohibitory  upon  the  equity 
courts,  or  if  it  shows  a  clear  and  certain  intent  that  the 
equitable  jurisdiction  is  no  longer  to  be  exercised  over  the 
matters  within  the  scope  of  the  enactment,  then  such  juris- 
diction of  equity  in  the  particular  class  of  cases  must  be 
considered  as  virtually  abrogated.^  ^  The  two  principles 
stated  in  this  and  the  preceding  paragraphs  apply  also  to 
the  exclusive  jurisdiction,  as  rules  regulating  the  admin- 
diction  over  matters  of  dower  to  the  probate  court  do  not  interfere  with 
the  jurisdiction  of  equity;  Jones  v.  Jones,  28  Ark.  19.  Statutes  giving 
law  courts  power  to  entertain  actions  on  lost  instruments:  Hardeman  v. 
Battersby,  53  Ga.  36;  Bright  v.  Newland,  4  Sneed,  440,  442.  Statute 
permitting  action  at  law  to  recover  a  partnership  debt  out  of  estate  of 
deceased  partner:  Waldron  v.  Simmons,  28  Ala.  629.  Statutes  giving  a 
garnishment  process  against  debtors,  etc.,  of  the  principal  debtor  do  not 
interfere  with  pre-existing  equitable  jurisdiction :  King  v.  Payan,  18  Ark. 
583,  587,  588 ;  Grain  v.  Barnes,  1  Md.  Gh.  151 ;  Payne  v.  Bullard,  23  Miss. 
88,  90,  55  Am.  Dec.  74.  Statutes  giving  actions  at  law  against  or  in  favor 
of  married  women:  Mitchell  v.  Otey,  23  Miss.  236,  240.  Statute  per- 
mitting assignee  of  a  thing  in  action  to  sue  at  law  in  his  own  name : 
Dobyns  v.  McGovern,  15  Mo.  662,  668.  Statute  permitting  the  defense 
at  law  of  failure  of  consideration  on  a  bond  or  note,  etc. :  Gase  v.  Fish- 
back,  10  B.  Mon.  40,  41.  And  see,  with  regard  to  the  general  doctrine, 
Wells  V.  Pierce,  27  N.  H.  503,  511-513 ;  Clark  v.  Henry's  Adm'r,  9  Mo. 
336,  339;  Oliveira  v.  University  of  North  Gar.,  1  Phill.  Eq.  69,  70;  Bid- 
die  v.  Moore,  3  Pa.  St.  161,  175,  176;  Wesley  Ghurch  v.  Moore,  10  Pa. 
St.  273;  Babcock  v.  McGamant,  53  111.  214,  217. 

§  182,  3  See  Erie  Railway  v.  Ramsey,  45  N.  Y.  637,  per  Folger,  J.,  as 
to  the  effect  of  the  provision  of  the  code  of  procedure  permitting  all  possi- 
ble equitable  defenses  to  be  set  up  in  actions  at  law;  Schell  v.  Erie  Rail- 
way, 51  Barb.  368;  Dorsey  v.  Reese,  14  B.  Mon.  127;  Winfield  v.  Bacon, 
24  Barb.  154;  Savage  v.  Allen,  59  Barb.  291;  Wolcott  v.  Jones,  4  Allen, 
307;  Glen  v.  Fowler,  8  Gill  &  J.  340;  Brown's  Appeal,  06  Pa.  St.  155; 
Patterson  v.  Lane,  35  Pa.  St.  275;  McGough  v.  Ins.  Go.,  2  Ga.  151,  154, 
46  Am.  Dec.  382;  Hall  v.  Joiner,  1  S.  G.  186;  Askew  v.  Myrick,  54  Ala. 
30.  It  has  been  held  that  when  a  new  legal  right  is  wholly  created  by 
statute,  and  a  legal  remedy  for  its  violation  is  also  given  by  the  same 
statute,  equity  has  no  authority  to  interfere  with  its  reliefs,  even  though 
the  statutory  remedy  is  difficult,  uncertain,  and  incomplete :  Goleman  v. 
Freeman,  3  Ga.  137;  Janney  v.  Buel,  55  Ala.  408. 

§  182,   (d)     Quoted    in    Phipps    v.  Kelly,  12  Or.  213,  6  Pac.  707. 


247  THE    CONCUERENT   JURISDICTION.  §  183 

istration  of  strictly  equitable  remedies,  but  they  are  of  far 
greater  importance  in  their  application  to  the  concurrent 
jurisdiction,  and  aid  in  fixing  its  extent,  and  in  determin- 
ing when  courts  of  equity  have  power  to  grant  remedies 
strictly  legal,  for  the  purpose  of  maintaining  or  redressing 
legal  primary  rights  and  interests. 

§  183.  Effect  of  the  Reformed  Procedure.^— The  re- 
formed system  of  procedure  which  now  prevails  in  more 
than  half  of  the  American  commonwealths,  in  England, 
and  in  the  most  important  dependencies  of  the  British  em- 
pire, has  also  profoundly  affected  the  scope  of  the  con- 
current jurisdiction,  in  one  direction  practically  enlarging, 
in  another  practically  lessening  it.  The  fundamental  prin- 
ciple of  this  reformed  system  is,  that  all  distinctions  be- 
tween legal  and  equitable  actions  are  abolished,  the  one 
"civil  action"  is  the  single  judicial  means  for  enforcing 
all  rights  in  a  court  clothed  with  both  jurisdictions  of  law 
and  of  equity  in  combination,  and  in  this  civil  action  legal 
and  equitable  primary  rights,  causes  of  action,  and  de- 
fenses may  be  united,  and  legal  and  equitable  remedies 
may  be  obtained.  In  applying  this  principle,  the  follow- 
ing results  have  been  well  established :  Whenever  a  plain- 
tiff is  clothed  with  primary  rights,  both  legal  and  equi- 
table, growing  out  of  the  same  transaction  or  condition  of 
facts  which  thus  constituted  a  cause  of  action,  and  is  en- 
titled thereon  to  an  equitable  remedy,  and  also  to  a  fur- 
ther legal  remedy  based  upon  the  supposition  that  the 
equitable  relief  is  granted,  and  he  sets  forth  all  these  facts 
in  his  petition,  and  demands  a  judgment  awarding  both 
species  of  relief,  the  action  will  be  sustained;  the  court 
will,  in  its  judgment,  formally  grant  both  the  equitable  and 
the  legal  relief. ^^     In  these  cases  there  is,  properly  cou- 

§  183,  1  See  Pomeroy  on  Remedies,  §  78;  Cone  v.  Niagara  Ins.  Co.,  60 
N.  Y.  619,  3  Thorap.  &  C.  33;  Anderson  v.  Hunn,  5  Hun,  79;  Bruce  v. 

§  183,   (a)    This   paragraph   of   the  §  183,   (b)    Cited  to   this   effect   in 

text  is  cited  in  Brown  v.  Baldwin,  Installment  B.  &  L.  Co.  v.  Went- 
46  Wash.  106,  89  Pac.  483.  worth,  1  Wash.  St.  467,  25  Pac.  298; 


§  183  EQUITY    JUKISPRUDENCE.  248 

sidered,  no  joinder  of  different  causes  of  action;  tliere  is 
only  the  union  of  different  remedial  rights  flowing  from 
one  cause  of  action.  Another  result  of  the  principle 
differs  from  the  one  just  stated  only  in  matter  of  form. 
The  plaintiff,  as  in  the  last  instances,  is  clothed  with  cer- 
tain primary  rights,  both  legal  and  equitable,  arising  from 
the  same  transaction  or  condition  of  facts,  and  is  entitled 
to  some  equitable  relief,  and  to  legal  relief  based  upon  the 
assumption  that  the  former  relief  is  awarded ;  he  avers  all 
the  necessary  facts  in  his  complaint  or  petition,  and.  de- 
mands both  the  remedies  to  which  he  is  entitled,  or  per- 
haps only  the  legal  remedy.  The  court,  instead  of  for- 
mally conferring  the  specific  equitable  remedy,  and  then 
proceeding  to  grant  the  ultimate  legal  remedy,  may  treat 
the  former  as  though  accomplished,  and  render  a  simple 
common-law  judgment,  embracing  the  final  legal  relief 
which  was  the  real  object  of  the  suit,  a  recovery  of  money 
or  of  specific  real  or  personal  property.^  c     it  is  plain  from 

Kelly,  5  Hun,  229,  232;  Laub  v.  Biickmiller,  17  N.  Y.  620,  626;  Lattin 
V.  McCarty,  41  N.  Y.  107,  109 ;  Welles  v.  Yates,  44  N.  Y.  525 ;  N.  Y.  Ice 
Co.  V.  N.  W.  Ins.  Co.,  23  N.  Y.  357,  359;  Cahoon  v.  Bank  of  Utiea,  7 
N.  Y.  486;  Broiestedt  v.  South  Side  R.  R.,  55  N.  Y.  220,  222;  Davis  v. 
Lamberton,  56  Barb.  480,  483;  Brown  v.  Brown,  4  Rob.  (N.  Y.)  4S8, 
700;  Walker  v.  Sedgwick,  8  Cal.  398;  Gray  v.  Dougherty,  25  Cal.  266; 
Henderson  v.  Dickey,  50  Mo.  161,  165;  Guernsey  v.  Am.  Ins.  Co.,  17 
Minn.  104,  108;  Montgomery  v.  McEwen,  7  Minn.  351.  But  per  contra^ 
in  Wisconsin:  Supervisors  v.  Decker,  30  Wis.  624,  626-630;  Noouan  v. 
Orton,  21  Wis.  283;  Horn  v.  Luddington,  32  Wis.  73. 

§  183,  2  See  Pomeroy  on  Remedies,  §  80;  Cone  v.  Niagara  Fire  Ins.  Co., 
60  N.  Y.  619,  3  Thomp.  &  C.  33 ;  BidweU  v.  Astor  Ins.  Co.,  16  N.  Y.  263, 
267;  Phillips  v.  Gorham,  17  N.  Y.  270;  Caswell  v.  West,  3  Thomp.  &  C. 

quoted   in   Browder   v.    Phinney,    30  his  acts  of  part  performance,  but  the 

Wash.  74,  70  Pac.  264.  only   relief   demanded   was   damages 

§183,   (c)    This  rule  is  well   illus-  for  his  eviction.     Held,  error  to  dis- 

trated    in    the    case    of    Browder    v,  miss  the  action  on  the  ground  that 

Phinney,  30  Wash.  74,  70  Pac.  264.  relief    could     only    be     granted     in 

A     complaint    stated     facts     which  equity.      See,     also,     Westerfelt     v. 

would  have  entitled  the  plaintiff  to  Adams,  131  N.  C.  379,  42  S.  E.  823 

specific    performance    of    a    contract  (recovery  in  ejectment  on  an  equi- 

to  make  a  written  lease,  by  reason  of  table  title). 


249  THE    CONCUKRENT    JURISDICTION.  §  184 

the  foregoing  rules  of  the  reformed  procedure  that  a  court 
clothed  with  full  equity  powers  may,  by  means  of  a  suit 
equitable  in  its  form,  and  requiring  the  determination  of 
equitable  primary  and  remedial  rights,  also  adjudicate 
upon  rights  and  award  remedies  strictly  legal,  which  might 
be  adjudicated  upon  and  awarded  in  an  action  at  law ;  and 
this  is  the  essential  feature  of  the  concurrent  jurisdiction. 
While  the  doctrines  of  the  reformed  procedure  thus  oper- 
ate to  enlarge  the  concurrent  jurisdiction,  the  further  doc- 
trine that  equitable  defenses  may  be  set  up  in  actions 
purely  legal  practically  produces  a  contrary  result,  by 
greatly  lessening  the  number  of  instances  in  which  the 
interposition  of  equity  courts  is  necessary  to  accomplish 
the  ends  of  justice.  In  theory,  however,  this  admission  of 
equitable  defenses  has  been  held  not  to  have  curtailed  or 
affected  the  pre-existing  equity  jurisdiction.  This  ques- 
tion is  most  intimately  connected  with  the  subject  of  in- 
junctions to  restrain  actions  or  judgments  at  law,  and  its 
discussion  is  therefore  postponed  to  a  subsequent  section. <i 

§  184.  The  Principal  Matters  Within  the  Concurrent 
Jurisdiction. — Having  thus  stated  the  doctrines  which 
affect  in  a  general  manner  the  concurrent  jurisdiction  of 
equity,  I  shall  now  proceed  to  enumerate  and  briefly  to  ex- 
plain the  various  classes  of  cases  which  constitute  the  ordi- 
nary and  well-settled  instances  of  that  jurisdiction.  These 
instances  will  be  arranged  into  groups  according  to  the 
nature  of  the  final  relief  obtained,  which  is,  of  course, 
esseniially  the  same  as  that  conferred  at  law  under  like 
circumstances,   namely:   1.  Those  in  which   the   relief   is 

383 ;  Sternbei-ger  v.  McGovern,  56  N.  Y.  12,  21 ;  McNeady  v.  Hyde,  47  Cal. 
481,  483 ;  N.  Y.  Ice  Co.  v.  N.  W.  Ins.  Co.,  23  N.  Y.  337,  359 ;  Graves  v. 
Spier,  58  Barb.  349,  383.  See,  also,  Marquat  v.  Marquat,  12  N.  Y.  336; 
Barlow  v.  Scott,  24  N.  Y.  40,  45;  Cuff  v.  Borland,  55  Barb.  481;  Herring- 
ton  V.  Robertson,  7  Hun,  368;  White  v.  Lyons,  42  Cal.  279;  Foster  v. 
Watson,  16  B.  Mon.  377,  387;  Leonard  v.  Rogan,  20  Wis.  540;  Pomeroy 
on  Remedies,  §  §  81,  82. 

§  183,   (d)  See,  further,  §§  353-358,  1366-1374. 


§  185  EQUITY    JURISPRUDENCE.  250 

substantially  the  recovery  of  possession,  or  tlie  establish- 
ment of  a  right  to  the  possession,  of  land;  2.  Those  in 
which  the  relief  is  the  recovery  of  possession  or  delivery 

^of  specific  chattels  or  written  instruments ;  and  3.  Those  in 
which  the  relief  is  pecuniary,  the  recovery  of  or  obtaining 
of  money.  This  classification,  although  generally  prac- 
ticable, is  not  absolutely  perfect.  In  a  few  cases  the  par- 
ticular exercises  of  the  concurrent  equitable  jurisdiction, 

'  depending  upon  the  same  principles  and  controlled  by  the 
same  rules,  may  include  both  a  recovery  of  specific  chat- 
tels and  of  money,  as  in  the  enforcement  of  gifts  causa 
mortis. 

§  185.  1.  Under  the  first  of  these  classes,  where  the  final 
relief  is  substantially  a  recovery  or  obtaining  possession 
of  specific  portions  of  land,  the  concurrent  jurisdiction  is 
clearly  established,  and  its  exercise  is  a  matter  of  ordinary 
occurrence,  in  suits  for  the  partition  of  land  among  joint 
owners  or  owners  in  common ;  ^  in  suits  for  the  assignment 
or  admeasurement  of  dower ;  2  and  in  suits  for  the  adjust- 
ment of  disputed  boundaries, ^  ^  where  some  equitable  inci- 
dent or  feature  is  involved,  and  the  dispute  is  not  wholly 
confined  to  an  assertion  of  mere  conflicting  legal  titles  or 
possessory  rights.^  2.  Under  the  second  class,  where  the 
final  relief  is  substantially  a  recovery  of  chattels,  the  juris- 
diction embraces  suits  to  compel  the  restoration  or  delivery 

§  185,  1  Jeremy's  Eq.  Jur.  303-306 ;  Fonblanque  on  Equity,  18-22 
(35-39)  ;  Agar  v.  Fairfax,  17  Ves.  533.  2  Lead.  Cas.  Eq.  865-919,  and 
notes  thei-eon;  1  Spenee's  Eq.  Jur.  653,  654. 

§  185,  2  Jeremy's  Eq.  Jur.  306;  Fonblanque  on  Equity,  22-24  (39,  40); 
1  Spenee's  Eq.  Jur.  653. 

§  185,  3  Jeremy's  Eq.  Jur.  301,  302;  Fonblanque  on  Equity,  21,  22  (37, 
38) ;  Wake  v.  Conyers,  1  Eden,  331,  2  Lead.  Cas.  Eq.  850-864,  and  note 
thereon;  1  Spenee's  Eq.  Jur.  655. 

§  185,   (a)    New   York   &   T.   Land  is  as  to  location.     Link  v.  Caldwell, 

Co.  V.  Gulf,  W.  T.  &  P.  B.  Co.,  100  22  Ky.  L.  Rep.  1041,  59  S.  W.  502. 
Fed.    830,   41    C.    C.   A.    87.     Equity  §185,   (b)    In    U.    S.    v.    Flournoy 

will  also   determine   the  location  o±'  etc.    Co.,    69   Fed.    886,   it   was   held 

a  passway,  when   the   only  question  that   the    United    States,   as   trustee 


251 


THE   CONCUREENT   JURISDICTION. 


§185 


of  possession  of  specific  chattels  of  such  a  peculiar,  un- 
common, or  unique  character  that  they  cannot  be  replaced 
by  means  of  money,  and  are  not  susceptible  of  being  com- 
pensated for  by  any  practicable  or  certain  measure  of 
damages,  and  in  respect  of  which  the  legal  actions  of  re- 
plevin, detinue,  or  trover  do  not  furnish  a  complete  rem- 
edy.4  <=     This   particular   exercise   of  the  jurisdiction  ex- 

§185,  4  Jeremy's  Eq.  Jur.  467^70;  Fonblanque  on  Equity,  31  (48); 
Pusey  V.  Pusey,  1  Vern.  273;  1  Lead.  Cas.  Eq.  1109-1117,  and  note 
thereon;  1  Spence's  Eq.  Jur.  643,  644. 


for  Indians,  can  maintain  a  bill  to 
oust  parties  occupying  under  illegal 
leases  and  to  restrain  such  parties 
from  inducing  the  Indians  to  make 
further  leases. 

185,  (c)  Recovery  of  Specific 
Chattels. — For  further  treatment  of 
this  subject,  see  Pom.  E'q.  Eem.  The 
text  is  quoted  in  Friedman  v.  Fraser, 
157  Ala.  191,  47  South.  320.  Thus, 
equity  has  allowed  a  bill  for  the 
recovery  of  pen  and  pencil  sketches 
(Lang  V.  Thatcher,  48  App.  Div. 
313,  62  N.  Y.  Supp.  956);  of  wampum 
belts  (Onondago  Nation  v.  Thatcher, 
29  Misc.  Eep.  428,  61  N.  Y.  Supp. 
1027;  affirmed,  65  N.  Y.  Supp.  1014); 
of  a  cup  won  as  a  prize  (Wilkinson 
V.  Stitt,  175  Mass.  581,  56  N".  E. 
830);  of  notes,  bond,  mortgage,  and 
book  accounts  (Bindseil  v.  Smith, 
Gl  N.  J.  Eq.  654,  47  Atl.  456); 
Tombler  v.  Sumpter,  97  Ark.  480, 
134  S.  W.  967  (compelling  delivery 
of  deed  held  in  escrow) ;  compare 
Friedman  v.  Fraser,  157  Ala.  191, 
47  South.  320,  quoting  text,  but 
holding  that  the  bonds  in  question 
did  not  have  a  unique  or  peculiar 
value  so  as  to  call  for  the  exercise 
of  the  jurisdiction.  See,  also,  Clark 
V.  Flint,  39  Mass.  (22  Pick.)  231,  33 
Am.  Dec.  733;  L'quitable  Trust  Co. 
V.  Garis,  190  Pa.  St.  544,  42  Atl. 
1022.   49   Wklv.   Notes   Cas.   41.     In 


Cushraan  v.  Thayer  Mfg.  Jewelry 
Co.,  76  N.  Y.  365,  32  Am.  Rep.  315, 
the  jurisdiction  was  maintained  to 
compel  the  transfer  of  corporate 
stock  of  a  peculiar  value  to  the  true 
owner.  In  Dock  v.  Dock,  180  Pa. 
St.  14,  57  Am.  St.  Rep.  617,  36  Atl. 
411,  the  plaintiff  was  allowed  to  re- 
cover letters  written  by  her  to  her 
son,  and  by  the  son  to  plaintiff.  The 
court  said:  "In  the  letters  written 
by  her  to  her  son,  she  has  a  special 
property  to  prevent  their  publication 
or  communication  to  other  persons, 
or  use  for  any  illegal  purpose  by 
the  party  wrongfully  in  possession 
of  them.  The  special  right  in  these 
letters  is  one  that  can  only  be  ade- 
quately protected  in  equity,  and  the 
court,  having  acquired  jurisdiction 
for  any  part  of  the  substantial  re- 
lief sought,  will  go  on  and  admin- 
ister full  relief  as  to  all  the  matters 
in  the  bill,  both  the  letters  and  the 
alleged  copies."  It  was  held  that 
slaves  were  property  of  such  a 
peculiar  nature  that  a  bill  would 
lie  for  their  specific  recovery.  Mur- 
phy V.  Clark,  9  Miss.  (1  Smedes  & 
M.)  221;  Hull  v.  Clark,  22  Miss.  (U 
Smedes  &  M.)  187;  Harry  v.  Glover, 
Riloy  Eq.  53,  2  Hill.  Eq.  515;  Young 
V.  Burton,  1  McMull.  Eq.  255;  Bobo 
V.  Grimke,  1  McMull.  Eq.  304;  Sims 
V.  Shelton,  2  Strobh.  Eq.  221;  Spend- 


§185 


EQUITY   JURISPRUDENCE. 


252 


tends,  for  like  reason,  to  suits  to  compel  the  delivery  of 
deeds,  muniments  of  title,  and  other  written  instruments, 
the  value  of  which  cannot,  with  any  reasonable  certainty, 
be  estimated  in  money.^  ^  The  equitable  jurisdiction  in 
these  cases  really  rests  upon  the  fact  that  the  only  relief 
which  the  plaintiff  can  have  is  the  possession  of  the  iden- 
tical thing,  and  this  remedy  cannot  with  certainty  be  ob- 
tained by  any  common-law  action.  In  the  same  class  must 
be  placed  suits,  which  are  maintainable,  under  some  special 
circumstances,  for  the  partition  of  chattels,  analogous  to 
those  for  the  partition  of  land.® 

§185,  5  Jeremy's  Eq.  Jur.  468,  469;  Fonblanque  on  Equity,  43    (60, 
61) ;  1  Lead.  Cas.  Eq.,  note  to  Pusey  v.  Pusey,  1113. 


love  V.  Spendlove,  Cam.  &  N.  36.  It 
was  necessary,  however,  that  plain- 
tiff's right  be  unquestionable.  Mar- 
tin V.  Fancher,  21  Tenn.  (2  Humph.) 
510.  And  no  relief  could  be  had 
when  defendant  did  not  have  pos- 
session. Brown  v.  Goolsby,  34  Miss. 
437. 

Where  the  law  provides  no  remedy 
whatever,  equity  may  well  take 
jurisdiction.  Thus,  where  replevin 
will  not  lie  because  the  goods  are  in 
the  custody  of  a  collector  of  internal 
revenue,  a  bill  in  equity  is  the  only 
appropriate  remedy.  Pollard  v.  Eear- 
don,  65  Fed.  848,  13  C.  C.  A.  171,  21 
U.  S.  App.  639. 

§  185,  (d)  Delivery  of  Written  In- 
strument.— The  text  is  cited  and  fol- 
lowed in  Bindseil  v.  Smith,  61  N.  J. 
Eq.  654,  47  Atl.  456;  Kelly  v.  Lehigh, 
Min.  &  Mfg.  Co.,  98  Va.  405,  81  Am. 
St.  Rep.  736,  36  S.  E.  511;  and 
quoted  in  Friedman  v.  Fraser,  157 
Ala.  191,  47  South.  320,  dissenting 
opinion.  See  Folsom  v.  McCague, 
29  Neb.  124,  45  N.  W.  269;  Equi- 
table Trust  Co.  V.  Garis,  190  Pa. 
St.    544,    70    Am.    St.    Ecp.    644,    4ii 


Atl.  1022,  44  Wkly.  Notes  Cas.  41; 
Danforth's  Adm'r  v.  Paxton,  1  Wash, 
St.  6,  23  Pac.  801;  Bindseil  v.  Smith, 
61  N.  J.  E'q.  654,  47  Atl.  456,  citing 
the  text  (written  instrument  of 
transfer  necessary,  and  damages  not 
adequate  relief) ;  Scarborough  v. 
Scotten,  69  Md,  137,  9  Am.  St.  Rep. 
409,  14  Atl,  704  (recovery  of  notes 
and  bills;  trover  and  replevin  in- 
adequate). Equity  may  order  the 
conveyance  of  a  patent  obtained  by 
fraud.  White  v.  Jones,  4  Call,  253, 
2  Am.  Dec.  564.  In  Walker  v.  Daly, 
80  Wis.  222,  49  N.  W.  812,  a  recovery 
was  allowed  of  certificates  of  land 
location.  The  court  held  that  re- 
plevin would  not  lie  because  the 
certificates  were  hereditaments. 

§  185,  (e)  The  text  is  quoted  in 
Zinn  V.  Zinn  (W.  Va.),  46  S.  E.  202, 
dissenting  opinion.  "Equity  has  ex- 
clusive jurisdiction  of  suits  for  the 
partition  of  personal  property,  even 
though  the  defendant  denies  plain- 
tiff's title."  Eobinson  v.  Dickey,  143 
Ind.  205,  52  Am,  St.  Rep.  417,  42 
N.  E.  679. 


253  THE    CONCURRENT    JURISDICTION.  §  186 

§  186.  3.^  Under  the  third  general  class,  where  the  final 
relief  is  pecuniary,  or  recovery  or  award  of  money  in  some 
form  or  for  some  purpose  as  the  result  of  the  preliminary 
determination  or  adjustment  of  primary  or  remedial  rights 
which  are  legal,  the  well-settled  instances  of  the  concurrent 
jurisdiction  are  many  in  number  and  varied  in  kind.  The 
following  are  the  most  important  and  the  ones  most  fre- 
quently met  in  actual  practice:  In  the  contract  of  surety- 
ship, and  the  relations  growing  out  of  it  between  sureties 
themselves,  sureties  and  their  principal  and  the  creditor, 
the  equitable  jurisdiction  includes  suits  for  exoneration 
and  for  contribution,  in  the  decision  of  which  the  principle 
of  subrogation  and  marshaling  of  securities,  and  other 
equitable  doctrines  necessary  to  a  complete  adjustment  of 
all  claims  and  liabilities,  may  be  invoked  and  enforced. ^ 
In  the  contract  of  partnership  and  the  relations  arising 
therefrom,  the  jurisdiction  embraces  suits  for  contribution, 
accounting,  and  pecuniary  recovery  necessary  for  the  set- 
tlement of  all  claims  which  may  exist  between  the  partners 
themselves,  or  between  the  partnership  and  its  members 
and  the  firm  and  individual  creditors,  all  claims  in  fact  for 
which  the  law  by  its  actions  gives  no  adequate  remedy.^  b 
The  principle  of  contribution,^  and  the  pecuniary  recov- 

§  186,  1  Jeremy's  Eq.  Jur.  517;  Bering  v.  Earl  of  Winchelsea,  1  Cox, 
318,  1  Lead.  Cas.  Eq.  120-188,  and  notes  thereon;  Aldrich  v.  Cooper,  8 
Ves.  308,  2  Lead.  Cas.  Eq.  228,  and  notes  thereon,  1  Spence's  Eq.  Jur. 
661-664. 

§  186,  2  Jeremy's  Eq.  Jur.  515-517;  2  Lead.  Cas.  Eq.  391-429,  note  to 
Silk  V.  Prime,  1  Brown  Ch.  138,  note;  1  Spence's  Eq.  Jur.  664-667. 

§  186,   (a)   Cited  with  approval  in  tiring  member  thereof  to  subject  to 

Stoclfton  V.  Anderson,  40  N.  J.  Eq.  execution       property       fraudulently 

488,  4  Atl.  642.  withdrawn  by  the  latter,  a  mere  per- 

§  186,  (b)  Partnership  Accounting.  sonal  judgment  against  him  was  the 

See     Pom.    Eq.     Rem.     Equity     will  proper     form     of     equitable     relief, 

grant  an  account  in  settling  partner-  Baily   v.   Hornthal,    154    N.   T.    648, 

Fhip    affairs.     Bellinger   v.    Lehman,  661,    61   Am.   St.   Kep.   645,    652,   49 

Durr  &  Co.,  103  Ala.  385,  15  South.  N.  E'.  56. 

(JOG;  Irwin  v.  Cooper,  111  Iowa,  728,  §186,   (c)   In  Eindge  v.  Baker,  57 

82    N.    W.    757.     In    a    suit    against  N.   Y.   209,   15  Am.  Rep.   475,   there 

members  of  a  partnership  and  a  re-  was  an  agreement  between  two  ad- 


§  186  EQUITY    JURISPRUDENCE.  254 

eries  depending  upon  it,  have,  in  the  exercise  of  the  con- 
current jurisdiction,  a  very  wide  application,  and  are  en- 
forced under  a  great  variety  of  circumstances.  The  most 
important,  comprehensive,  and  multiform  remedy  of  the 
concurrent  jurisdiction  which  results  in  pecuniary  recov- 
eries is  that  of  accounting. 3  The  variety  of  its  uses  and 
possible  applications  is  practically  unlimited;  it  can  be 
adapted  to  all  circumstances  and  relations  in  whicJi  an 
account  is  necessary  for  the  settlement  of  claims  and  lia- 
bilities, and  for  the  doing  full  justice  to  the  litigant  par- 
ties.<l  Among  the  most  common  instances  in  which  this 
remedy  is  employed  by  courts  of  equity  are  the  ascertain- 
ing and  settlement  of  claims  and  liabilities  between  prin- 
cipals and  agents,^  ®  and  between  all  other  persons  stand- 
ing in  fiduciary  relations  to  each  other  ;^  the  ascertaining 
and  adjustment  of  the  respective  amounts  of  persons  en- 
titled to  participate  in  the  same  fund,^  and  of  the  respec- 
tive shares  of  persons  subjected  to  some  common  liability ; 

§186,  3  Jeremy's  Eq.  Jiir.  504-550;  Fonblanque  on  Equity,  470-473; 
1  Spence's  Eq.  Jur.  649-651. 

§  186,  4  Jeremy's  Eq.  Jur.  513,  514. 

§  186,  5  Jeremy's  Eq.  Jur.  522,  523,  541-544. 

joining  owners  to  construct  a  party-  Fed.  890,  894,  113  C.  C.  A.  368,  to 
wall.  One  refused  to  do  Ms  part,  tlie  effect  that  the  relation  of  prin- 
whereupon  the  other  completed  and  cipal  and  agent  being  fiduciary,  may 
then  sued  for  contribution.  The  in  some  cases  in  itself  confer  juris- 
court  said:  "It  is  claimed  that  the  diction  in  equity;  quoted  in  Hurl- 
present  action  is  not  an  equitable  hurt  v.  Morris,  68  Or.  259,  135  Pac. 
one.  The  fact  that  it  is  brought  for  531,  holding  that  the  mere  existence 
money  is  not  decisive  on  that  point.  of  agency  is  not  enough  to  confer 
The  real  test  in  such  an  action  is  jurisdiction,  but  that  there  must  be 
this:  "If  it  be  brought  for  damages  an  agency  coupled  with  some  dis- 
for  breach  of  contract,  it  is  a  case  tinct  duty  on  the  part  of  the  agent 
at  law;  if  it  be  brought  for  money,  in  relation  to  funds  or  some  specific 
by  way  of  performance  of  the  con-  property, 
tract,  it  is  a  case  in  equity."  §  186,   (f )    Hunter    v.     U.     S.,    30 

§186,   (d)   The   text   is   quoted   in  U.  S.   (5  Pet.)   173.     Where  a  party 

State  V.  Chicago  &  N.  W.  By.   Co.,  seeks  to  reach  a  particular  fund,  he 

132  Wis.  345,  112  N.  W.  515.  may  obtain  relief  in  equity.     Smith 

§  186,   (e)     The    text    is    cited    in  v.  Bates  Match  Co.,  182  111.  166,  55 

Hayward  &  Clark  v.  McDonald,  192  N.  E.  69. 


255 


THE    CONCURRENT   JURISDICTION, 


§187 


the  ascertaining  and  adjustment  of  the  shares  of  persons 
liable  to  contribute  to  a  general  average;  the  ascertain- 
ing and  adjustment  of  the  shares  of  persons  liable  to  con- 
tribute with  respect  to  charges  of  any  kind  upon  land  or 
other  property ;  the  appropriation  of  payments ;  the  appor- 
tionment of  rents ;  ^  and  numerous  other  instances  where 
a  number  of  persons  are  differently  interested  in  the  same 
subject-matter,  or  are  differently  liable  with  respect  to 
some  common  objects 

§  187.^  In  the  same  general  class  of  pecuniaiy  reliefs 
belonging  to  the  concurrent  jurisdiction,  and  united 
together  by  a  tie  of  close  analogy,  are  suits  for  the  re- 
covery of  legacies, 1  suits  for  the  recovery  or  enforcement 
of  donations  causa  mortis,'^  and  the  various  suits,  involv- 

§  186,  6  Jeremy's  Eq.  Jur.  506,  512,  519;  1  Spence's  Eq.  Jur.  661-664. 
§  187,  1  Jeremy's  Eq.  Jur.  105,  537,  548}  1  Spence's  Eq.  Jur.  578-583. 
§  187,  2  Snell's  Eq.  138-144. 


§  188,  (g)  The  text  is  cited  in 
Gulf  Compress  Co.  v.  Jones  Cotton 
Co.,  157  Ala.  32,  47  South.  251  (un- 
certain which  of  two  defendants, 
who  were  in  privity  of  contract, 
was  liable  to  complainant  for  goods 
damaged  or  lost,  or  in  what  propor- 
tion, if  both  were  liable).  See,  in 
general,  Sears  v.  Hotchkiss,  25  Conn. 
171,  65  Am.  Dec.  557;  Pittsburg,  C 
&  St.  L.  E'y.  Co.  V.  Koekuk  &  H. 
Bridge  Co.,  68  Fed.  19,  15  C.  C.  A. 
184,  46  U.  S.  App.  530;  Tasker  v. 
Ford,  64  K  H.  279,  8  Atl.  823; 
Colthar  v.  North  Plainfield  Tp.,  39 
N.  J.  Eq.  380;  Meyer  v.  Saul,  82 
Md.  459,  33  Atl.  539;  City  of 
Apalaehicola  v.  Apalachieola  Land 
Co.,  9  Fla.  340,  79  Am.  Dec.  284. 
See,  as  further  illustration,  Warfield- 
Pratt-Howell  Co.  v.  Williamson,  233 
111.  487,  84  N.  E.  706  (demand  on 
insurance  policies  is  to  be  paid  out 
of  a  particular  fund  created  or  to 
be    created    by    contributions    made 


by  a  large  number  of  persons,  which 
is  either  in  the  hands  of  the  manager 
or  is  to  be  collected  by  him  from  the 
subscribers;  personal  decree  to  com- 
pel collection  may  be  necessary). 
Equity  will  take  jurisdiction  where 
accounts  are  complicated.  Warner  v. 
McMullin,  131  Pa.  St.  370,  18  Atl. 
1056,  25  Wkly,  Notes  Cas.  157;  In- 
hab.  of  Cranford  Tp.  v.  Watters,  61 
N.  J.  Eq.  248,  48  Atl.  316;  O'Con- 
nor V.  Henderson  Bridge  Co.,  95  Ky. 
633,  27  S.  W.  251,  983;  Williams  v. 
Allen,  32  N.  J.  Eq.  485;  Flickinger 
V.  Hull,  5  Gill,  60.  Equity  will 
take  jurisdiction  of  mutual  ac- 
counts. Board  of  Commissioners  of 
Grant  County  v.  McKinlcy,  8  Okl. 
128,  56  Pac.  1044;  Brewer  v.  Asher, 
8  Okl,  231,  56  Pac.  714;  Black  v. 
Boyd,  50  Ohio  St.  46,  33  N.  E.  207. 
§  187,  (a)  This  paragraph  is  cited, 
generally,  in  Brown  v.  Baldwin,  4G 
Wash.  106,  89  Pac.  4S3. 


§  188  EQUITY    JURISPRUDENCE.  256 

ing  some  equitable  feature  or  incident,  brought  in  connec- 
tion with  or  in  aid  of  the  administration  of  the  estates  of 
deceased  persons. ^^  Although  the  administration  of  de- 
cedents' estates  has,  in  this  country,  been  committed  to 
courts  of  probate,  and  the  former  jurisdiction  of  equity 
to  entertain  ** administration  bills"  for  the  complete  and 
final  settlement  of  such  estates  does  not  practically  even 
if  nominally  exist,  still  there  are  many  special  cases 
belonging  to  the  concurrent  jurisdiction  in  which  suits  may 
be  brought  to  obtain  pecuniary  recoveries  against  execu- 
tors and  administrators,  in  the  process  of  and  connected 
with  their  work  of  administering  and  settlement. 

§  188.  In  another  extensive  class  of  suits  brought  to 
obtain  pecuniary  relief,  and  strictly  belonging  to  the  con- 
current jurisdiction,  the  remedial  right  is  occasioned  by 
or  in  some  manner  connected  with  accident,  mistake,  or 
fraud.i  ^     These  three   matters   play   an   important   part 

§  187,  3  Jeremy's  Eq.  Jur.  537-541 ;  1  Spence's  Eq.  Jur.  578-586. 

§  188,  1  Fraud,  mistake,  and  accident,  being  the  mere  occasions  of 
primary  and  remedial  rights,  are  not  in  any  true  sense  the  grounds  and 
basis  of  jurisdiction ;  the  primary  rights  and  interests,  and  the  remedial 
rights,  of  which  they  are  the  occasion,  belong  to  both  jurisdictions. 
Excepting  the  particular  case  of  suits  to  recover  the  amounts  due  upon 
lost  bonds,  bills,  notes,  etc.,  all  the  instances  of  suits  arising  from  or 
based  upon  fraud,  mistake  or  accident  belonging  to  the  concurrent  juris- 
diction might  be  referred  to  some  other  head  of  that  jurisdiction,  such 
as  "accounting,"   "contribution,"   and  the  like. 

§  187,  (b)    The    text    is    cited    in  sence  of  an  adequate  remedy  at  law 

Howell  V.  Morres,  127  111.  67,  19  N.  is    generally   a   sufiEicient    ground    of 

E.   863    (bill  for  accounting  against  equitable     jurisdiction;     but     it     is 

administrator   of   deceased   trustee).  equally  true  that  the  existence  of  a 

§188,   (a)     Thus,    where    plaintiff  remedy  at  law  cannot  deprive  courts 

seeks  an  abatement  of  the  price  of  of  equity  of  jurisdiction  in  a  matter 

land  on  the  ground  of  fraud  as  to  that  comes  within  the  scope  of  their 

quantity,    equity    may   grant    relief.  elementary    jurisdiction."     Meek    v. 

"Fraud    and    misrepresentation    are  Spraeher,  87  Va.   162,  12   S.  E.  397. 

among    the    elementary    grounds    of  This  paragraph  of  the  text  is  cited 

equitable     jurisdiction     and     relief.  in     Massie's     Adm'r     v.     Heiskell's 

Where  they  exist,  the  question  of  an  Trustee,  80  Va.  789,  801  (mistake  of 

'adequate    remedy    at    law'    can    but  fact), 
seldom  arise.     It  is  true  that  the  ab- 


257  THE    CONCUKRENT    JURISDICTION.  §  189 

throughout  the  entire  equity  jurisprudence;  and  all  cases 
involving  or  in  any  manner  depending  upon  or  growing 
out  of  accident,  or  mistake,  or  fraud,  have  sometimes  been 
described  as  belonging  to  the  concurrent  jurisdiction,  since 
courts  of  law  may  also  take  cognizance  of  some  causes  of 
action  or  defenses  arising  from  the  same  sources.  In  the 
classification  which  I  have  adopted,  and  which  is  far  more 
accurate  and  consistent,  all  those  cases  in  which  the 
strictly  equitable  remedies  of  reformation,  re-execution, 
cancellation,  and  the  like,  are  granted  on  account  of  mis- 
take, accident,  or  fraud  necessarily  come  within  the  exclu- 
sive jurisdiction.^  As  these  purely  equitable  kinds  of  re- 
lief are  generally  requisite,  in  order  to  do  complete  justice 
to  the  parties,  where  the  remedial  right  arises  from  or  is 
affected  by  mistake,  accident,  or  fraud,  it  follows  that  the 
cases  depending  thereon,  which  properly  belong  to  the  con- 
current jurisdiction,  are  comparatively  few.^  In  truth, 
mistake,  and  especially  fraud,  instead  of  being  particular 
source  of  the  concurrent  jurisdiction,  are  facts  which  affect 
the  causes  of  action  and  reliefs,  the  primary  and  remedial 
rights  constituting  the  whole  of  equity  jurisprudence. 

§  189.  There  are  some  other  instances  in  which  the  con- 
current jurisdiction  is  exercised,  because  the  legal  remedy 
is  inadequate,  or  because,  through  the  imperfection  of  the 
procedure  at  law,  a  legal  remedy  would  be  wholly  insuffi- 

§  188,  2  1  Spence's  Eq.  Jur.  622,  628,  632 ;  Jeremy's  Eq.  Jur.  359,  366, 
383. 

§188,   (b)  The  text  is  cited  to  this  tion  for  damages;  relief  by  reinstat- 

effect  in  Bickley  v.  Commercial  Bank  ing  action  in  court  of  another  state 

of  Columbia,  21  S.  C.  886,  21  S.  E.  does  not  oust  equity  of  its  jurisdic- 

886;    Mason    v.    Fichner,    120    Minn.  tion). 

185,  139  N.  W.  485;  Wlatson  v.  Borah,  The  text  is  cited- to  the  effect  that 

37  Old.  357,  132  Pac.  347   (caneella-  the  jurisdiction  is  not  exercised  in 

tion) ;  Bruner  v.  Miller,  59  W.  Va.  36,  every  case  of  fraud,  in  Lightfoot  v. 

52   S.  E.  995;   and  cited  in  Bush  v.  Davis,   198   N.   Y.   261,   139   Am.   St. 

Prescott  &  N.  W.  E.  Co.,  76  Ark.  497,  Rep.     817,    19    Ann.     Cas.     747,     29 

89  S.  W.  86  (suit  to  cancel  for  fraud  L.  R.  A.  (N.  S.)   119,  91  N.  E.  582. 
a  release  and  compromise  of  an   ac- 
1—17 


189 


EQUITY   JURISPRUDENCE. 


258 


cient,  if  not  impracticable.a-  Among  these  tlie  most  im- 
portant are  suits  to  recover  rent  under  some  special  cir- 
cumstances ;  1  ^  suits  to  procure  or  compel  a  set-off  wliicli 
is  not  admissible  or  possible  under  the  practice  at  law;2e 
suits  by  one  firm  against  another,  when  both  firms  have 
a  common  partner,  and  other  analogous  suits  which  the 
technical  legal  rules,  as  to  parties,  prevented  from  being 
entertained  by  courts  of  law ;  ^  d  and  under  peculiar  cir- 
cumstances, recoveries  of  damages  by  way  of  compensa- 
tion in  addition  to,  or  even  in  place  of,  other  equitable 
relief.® 

§  189,  1  Fonblanque  on  Equity,  b.  1,  chap.  3,  §  3,  p.  156  (139). 
§  189,  2  1  Spence's  Eq.  Jur.  651 ;  2  Lead.  Cas.  Eq.  1338-1347,  notes  to 
Earl  of  Oxford's  case. 

§  189,  3  1  Spence's  Eq.  Jur.  641,  642. 


§  189,  (a)  When  a  factor  deposits 
money  collected  as  proceeds  of  sales 
for  his  principal  in  a  bank,  the  prin- 
cipal may  maintain  a  bill  against  the 
bank  to  recover  the  money.  In  such 
a  case  there  is  no  legal  remedy  for 
the  principal  against  the  bank 
Union  Stock  Yards  Nat.  Bank  v.  Gil 
lespie,  137  U.  S.  411,  11  Sup.  Ct.  118 
In  Chosen  Freeholders  of  Essex  Co 
V.  Newark  City  Nat.  Bank,  48  N.  J 
Eq.  51,  21  Atl.  185,  a  county  was  al 
lowed  to  recover  in  equity  from  a 
bank  a  sum  of  money  deposited  by  a 
former  county  collector  in  his  own 
name. 

§  189,  (b)  "Rent  is  recoverable  in 
equity  where  the  remedy  has  become 
diiEcult  or  doubtful  at  law,  or  where 
the  premises  have  become  uncer- 
tain." Livingston  v.  Livingston,  4 
Johns.  Ch.  287,  8  Am.  Dec.  562. 

§  189,  (c)  Set-off. — The  text  is 
cited  in  Fleming  v.  Stansell,  13  Tex, 


Civ.  App.  558,  36  S.  W.  504;  Farris 
V.  McCurdy,  78  Ala.  250;  De  Laval 
Separator  Co.  v.  Sharpless,  134  Iowa, 
28,  111  N.  W.  438  (injunction  against 
insolvent  judgment  plaintiff  to  com- 
pel a  set-off.) 

§189,  (d)  Noyes  v.  Ostrom,  113 
Minn.  Ill,  129  N.  W.  142  (two  firms 
having  common  member).  Thus, 
where  the  lessor  is  also  one  of  the 
lessees  of  a  joint,  and  not  several 
lease,  the  suit  may  be  maintained  in 
equity.  Pelton  v.  Place,  71  Vt.  430, 
46  Atl.  63. 

§189,  (e)  Thus,  where  a  party 
after  contracting  to  sell  land,  con- 
veys it  to  another,  and  the  legal 
remedy  is  insufficient  because  of  the 
Statute  of  Frauds,  a  bill  in  equity 
for  damages,  relying  upon  part  per- 
formance to  take  the  case  out  of  the 
statute,  may  be  maintained.  Jervis 
V.  Smith,  1  Hoff.  Ch.  470. 


259  THE    AUXILIARY    J  UKISDICTION,  §  190 

SECTION  IV. 
THE  AUXILIARY  JURISDICTION. 

ANALYSIS. 

§  190.     The  auxiliary  jurisdiction  defined, 
5§  191-209.     Of  discovery. 

§  191.     Definition  and  kinds  of  discovery. 
§  192.     Origin  of,  in  English  and  in  Roman  law, 
§§193,194.     Effect  of  modern  legislation;  how  far  discovery  proper  has  been 
abolished   by   statutes. 
§  195.     General  doctrine;  when  discovery  will  or  will  not  be  enforced. 
§§196,197.     I.  What  judicial  proceedings,  in  what  courts,   will  be  aided   by 

discovery  in  equity. 
§§198-200.     II.  The  parties;   their  situation  and  relations  to  each  otherj  in 
order  that  a  discovery  may  be  granted. 
§  198.     The  plaintiff. 
§  199.     The  defendant. 
§  200.     A  bona  fide  purchaser. 
§§  201-207.     III.  The    nature,    subject-matter,   and    objects   of   the    discovery 
itself;    of  what   the  plaintiff   may   compel   discovery,    and   the 
defendant  must  make  discovery. 
§  201.     General  doctrine;   of  what  facts  discovery  will  be  compelled. 
§  202.     Of  what  kinds  of  facts  discovery  will  not  be  compelled. 
§  203.     What  is  privileged  from  discovery. 

§  204.     The  manner  in  which  the  defendant  must  make  discovery. 
§§  205-207.     Production  and  inspection  of  documents. 

§  208.     IV.  When,  how  far,  and  for  whom  may  the  answer  in  the  dis- 
covery suit  be  used  as  evidence. 
§  209.     How  far  the  foregoing  rules  have  been  altered  by  statute. 
§§  210-215.     Of  the  examination   of  witnesses. 

§  210.     This  branch  of  the  jurisdiction  described. 
§§  211,  212.     I.  Suit  to  perpetuate  testimony. 

§  212.     iStatutory  modes  substituted. 
§§  213-215.     II.  Suits  to  take  the  testimony  of  witnesses  de  bene  esse,  and  of 
witnesses  in  a  foreign  country. 
§  215.     Statutory  modes  substituted. 

§  190.  Definition. — The  auxiliary  jurisdiction  of  equity 
belongs  entirely  to  the  procedure  by  which  rights  are  en- 
forced and  remedies  are  obtained,  and  is  not  in  any  manner 
concerned  with  the  reliefs  themselves  which  are  granted, 
except  so  far  as  reliefs  must  always  be  indirectly  affected 
by  the  procedure.     Its  object,   scope,   and  functions  are 


§  190  EQUITY    JUKISPRUDENCE.  260 

wholly  confined  to  the  procuring  of  evidence;  and  it  con- 
sists of  special  judicial  methods  by  which,  under  certain 
particular  circumstances,  the  evidence  needed  in  pending 
or  anticipated  litigations  may  be  obtained.  It  is  divided 
into  two  main  branches :  the  first  contains  the  modes  by 
which  the  parties  themselves  are  compelled  to  disclose 
facts  and  to  produce  documents,  and  thus  to  furnish  the 
evidence  needed  by  their  adversaries;  while  the  second 
contains  the  modes  by  which  evidence  of  witnesses  gen- 
erally is  procured  and  preserved,  under  particular  circum- 
stances, for  which  the  common  law  made  no  provision. a- 
The  rules  of  the  ancient  common  law  concerning  the  com- 
petency of  witnesses  were  exceedingly  arbitrary,  and 
would  often  work  great  injustice,  unless  their  defects  had 
been  supplied  by  the  equitable  jurisdiction.  In  the 
common-law  courts,  prior  to  the  modern  statutory  legis- 
lation, a  party  could  not  be  examined  as  a  witness,  nor 
forced  to  make  admissions  in  his  pleadings,  in  behalf  of 
his  adversary;  nor  was  there  any  means  in  the  common- 
law  procedure  of  compelling  a  party  to  produce,  or  submit 
for  inspection,  or  furnish  copies  of  any  documents  or  books 
which  might  be  in  his  possession  or  under  his  control,  how- 
ever important  they  might  be  to  the  other  party's  cause 
of  action  or  defense. ^  It  was  to  supply  this  grievous  de- 
fect in  the  ancient  common-law  methods  that  equity  estab- 
lished the  first  branch  of  its  auxiliary  jurisdiction,  called 
discovery. 2  In  like  manner  the  ancient  common  law  only 
permitted  the  examination  of  witnesses  at  the  very  trial 
of  a  cause,  and  its  courts  had  no  power  to  take  testimony 
upon  commission  in  anticipation  of  the  trial,  and  much  less 
in  anticipation  of  the  bringing  of  an  action.^  This  defect 
was  supplied  by  equity  in  the  second  branch  of  its  auxiliary 

§190,  13    Black.    Com.    381,    382;    Com.    Dig.,   tit.    Chancery,    3,    B; 
Jeremy's  Eq.  Jur.  255;  1  Spence's  Eq.  Jur.  677. 
§  190,  2  Ibid. 
§  190,  3  3  Black.  Com.  383 ;  Jeremy's  Eq.  Jur.  270, 

§  190,   (a)    Quoted    in    Winter    v.    Elmore,  88  Ala.  555,  7  South.  250. 


261  THE    AUXILIARY    JURISDICTION.  §  191 

jurisdiction,  which  provides  for  and  regulates  the  exam- 
ination of  witnesses  de  bene  esse,  and  the  perpetuation  of 
evidence.  4     I  shall  discuss  these  two  branches  separately. 

DISCOVERY. 

§  191.  Discovery  Defined.^ — In  one  most  important 
sense  "discovery"  is  not  peculiar  to  and  does  not  belong 
to  the  auxiliary  jurisdiction.  Every  suit  in  equity  brought 
to  obtain  relief  is  or  may  be  most  truly  a  suit  for  dis- 
covery; for  the  complainant  may  always,  and  generally 
does,  by  the  allegations  and  interrogatories  of  his  bill,  call 
upon  and  force  the  defendant  to  disclose  by  his  answer 
under  oath  facts  and  circumstances  within  his  knowledge 
in  support  of  the  plaintiff's  contention;  and  the  plaintiff 
may  perhaps  go  to  the  hearing,  relying  largely,  and  some- 
times wholly,  upon  the  evidence  thus  furnished  by  the 
compulsory  admissions  of  the  defendant's  answer.  This 
incident  of  chancery  pleading,  so  entirely  at  variance  from 
the  common-law  practice,  by  which  the  conscience  of  the 
defendant  could  be  probed,  and  which  was  so  powerful  an 
instrument  in  eliciting  the  truth  in  judicial  controversies, 
has  been  essentially  adopted  by  the  reformed  system  of 
procedure.  Under  that  procedure  this  chancery  mode  of 
pleading  for  the  purpose  of  eliciting  facts  as  well  as  pre- 
senting issues  has  been  essentially  applied  to  all  equitable 
suits,  except  those  causes  of  action  in  which  the  defend- 
ant's admissions  might  expose  him  to  criminal  prosecu- 
tion, penalties,  and  the  like.  But  this  is  not  the  discovery 
^ow   under   consideration.^     Discovery  proper  is,   in  its 

§  190,  4  Jeremy's  Eq.  Jur.  255,  271,  273;  1  Spence's  Eq.  Jur.  681. 
§  191,  1  The  distinction  here  pointed  out  should  be  most  carefully  ob- 
served, or  else  the  whole  subject  will  become  confused  and  uncertain. 

§191,  (a)   Cited  with  approval  in  Ala.  514,  52  South.  651;  Sloss-Shef- 

Reynolds  v.  Burgess   Sulphite  Fibre  field   Steel   &  Iron  Co.   v.   Maryland 

Co.,  71  N.  H.  332,  93  Am.   St.  Rep.  Casualty  Co.,  167  Ala.  557,  52  Soutli. 

535,  57  L.  R.  A.  949,  51  Atl.  1075,  in  751;    Beem    v.    Farrell    (Iowa),    108 

Mutual  Life  Ins.  Co.  v.  Griesa,   156  N.  W.  1044. 
Fed.    398;    Townsend    v.    Miles,    167 


§  191  EQUITY    JURISPRUDENCE.  262 

essential  conception,  merely  an  instrument  of  procedure, 
unaccompanied  by  any  direct  relief,  but  in  aid  of  relief 
sought  by  the  party  in  some  other  judicial  controversy. 
The  suit  for  discovery,  properly  so  called,  is  a  bill  filed 
for  the  sole  purpose  of  compelling  the  defendant  to  answer 
its  allegations  and  interrogatories,  and  thereby  to  disclose 
facts  within  his  own  knowledge,  information,  or  belief,  or 
to  disclose  and  produce  documents,  books,  and  other  things 
within  his  possession,  custody,  or  control,  and  asking  no 
relief  in  the  suit  except  it  may  be  a  temporary  stay  of 
the  proceedings  in  another  court  to  which  the  discovery  re- 
lates. As  soon,  therefore,  as  the  defendant  in  such  suit 
has  put  in  his  answer  containing  a  full  discovery  of  all 
the  matters  and  things  which  he  is  obliged,  according  to 
the  principles  and  doctrines  of  equity  on  the  subject,  to 
disclose,  the  object  of  the  suit  has  been  accomplished,  and 
the  suit  itself  is  ended ;  nothing  remains  to  be  done  but  to 
use  this  answer  as  evidence  in  the  judicial  proceeding  to 
which  this  discovery  was  collateral. ^  ^  This  branch  of  the 
auxiliary  jurisdiction  may  be  invoked,  and  the  suit  in 
equity  for  a  discovery  may  be  maintained,  by  the  plain- 
Unfortunately  the  decisions,  esj^ecially  the  American,  while  speaking  of 
"discovery,"  have  not  always  been  careful  to  distinguish  between  the 
"discovery"  which  is  a  constant  incident  to  the  obtaining  of  relief  in  every 
equity  suit,  and  the  "discovery"  which  is  a  branch  of  the  auxiliary  juris- 
diction, obtained  in  a  separate  suit  without  any  relief.  Rules  and  modes 
applicable  alone  to  the  latter  have  sometimes  been  spoken  of  as  belonging 
to  the  former,  and  vice  versa. 

§191,  2  Jeremy's  Eq.  Jur.  257,  258;  1  Spence's  Eq.  Jur.  677,  678; 
Adam's  Eq.,  6th  Am.  ed.,  20,  marg.  p.  89;  Lady  Shaftesbury  v.  Arrow- 
smith,  4  Ves.  71;  Kearney  v.  Jeffries,  48  Miss.  343;  Heath  v.  Erie  R.  R., 
9  Blatchf.  316;  Shotwell  v.  Smith,  20  N.  J.  Eq.  79. 

§  191,   (b)    Cited   to   this   effect  in  Co.,  71   N.   H.   332,   339,  93  Am.   St. 

Hurricane  Tel.  Co.  v.  Mohler,  51  W.  Eep.   535,   542,   57  L.  R.  A.   949,   51 

Va.  1,  41  S.  E.  421;  also  in  E'skridge  Atl.   1075.     To   the   same   effect,   see 

V.    Thomas    (W.    Va.),    91   S.    E.    7.  Williams   v.   Phiel,    66    Fla.    192,   63 

Cited  to  the  effect  that  the  bill  will  South.  658,  holding  that  in  aid  of  the 

lie  to  compel  the  inspection  of  other  discovery,  the  court  may  appoint  a 

things  than  books  and  documents  in  receiver    to   examine   and   work   the 

Reynolds  v.  Burgess  Sulphite  Fibre  property. 


263  THE    AUXILIARY    JURISDICTION.  §  191 

tiff  in  an  action  of  law  against  the  defendant  therein,  or 
by  the  defendant  in  an  action  at  law  against  the  plaintiff 
therein,  in  order  to  obtain  evidence  material  to  his  cause 
of  action  or  to  his  defense,  as  the  case  may  be,  and  this  is 
undoubtedly  its  most  common  purpose; ^  also  by  the  de- 
fendant in  a  suit  in  equity,  in  the  form  of  a  cross-bill 
against  the  complainant  therein,  in  order  to  obtain  a  dis- 
closure of  facts  necessary  to  enable  him  properly  to  frame 
his  answer  to  the  original  bill,  or  to  obtain  a  disclosure  of 
facts  material  as  evidence  on  his  behalf  at  the  hearing 
upon  the  original  bill  and  answer  thereto ;  ^  and  also,  under 
some  circumstances,  by  the  moving  party  or  petitioner  in 
some  proceeding  in  a  court  of  equity  to  avoid  the  neces- 
sity or  to  escape  the  difficulty  of  procuring  the  evidence 
in  that  proceeding.^     It  is  not,  however,  essential  to  a  bill 

§191,  3  Ibid. 

§  191,  4  See  King  of  Spain  v.  Hallett,  1  Clark  &  F.  333 ;  Prioleau  v. 
United  States,  L.  R.  2  Eq.  659 ;  United  States  v.  Wagner,  L.  R.  2  Ch.  582, 
L.  R.  3  Eq.  724;  Columbian  Govt.  v.  Rothschild,  1  Sim,  94;  Millsaps  v. 
Pfeiffer,  44  Miss.  805. 

§  191,  5  Montague  v.  Dudman,  2  Ves.  Sr.  398,  per  Lord  Hardwicke:  "A 
bill  of  discovery  lies  here  in  aid  of  some  proceedings  in  this  court  (i.  e., 
the  court  of  chancery),  in  order  to  deliver  the  party  from  the  necessity  of 
procuring  evidence;  or  to  aid  in  the  proceeding  in  some  suit  relating  to  a 
civil  right  in  a  court  of  common  law,  as  an  action."  In  an  ordinary  suit 
in  equity  the  complainant  has  no  need  to  file  a  separate  bill  of  discovery; 
since  he  can  always  obtain  all  possible  disclosure  of  material  facts  from 
the  defendant  in  that  same  suit,  by  means  of  his  bill  and  the  defendant's 
answer.  But  rules  hereinafter  stated,  concerning  the  subject-matter  of 
the  discovery,  the  materiality  of  the  facts  disclosed  to  the  plaintiff's  case, 
what  disclosures  cannot  be  compelled,  privileged  communications,  the  pro- 
duction of  documents,  etc.,  are  generally  applicable  to  the  discoveiy  sought 
by  the  plaintiff  in  a  suit  for  relief,  as  well  as  to  the  discovery  sought  in 
a  separate  "suit  for  discovery"  alone;  many  of  the  decisions  cited  to  illus- 
trate these  rules  were  rendered  in  suits  for  relief.  The  same  is  true  under 
the  new  practice  now  prevailing  in  England  and  in  many  of  our  states,  by 
which  interrogatories  filed  by  either  party  to  a  pending  suit  have  been 
substituted  in  place  of  the  discovery  by  means  of  the  bill  and  answer  in 
the  same  suit,  or  by  means  of  a  bill  and  answer  in  a  separate  "discovery 
suit." 


§  191  EQUITY   JURISPRUDENCE.  264 

of  discovery  that  it  should  be  the  only  means  which  the 
complainant  therein  has  of  procuring  evidence  in  support 
of  his  collateral  cause  of  action  or  defense;  that  is,  it  is 
not  necessary  that  the  complainant  should  otherwise  be 
destitute  of  proof  or  of  the  means  of  obtaining  it.  The 
bill  for  a  discovery  is  proper,  either  when  the  complainant 
therein  has  no  other  proof  than  that  which  he  expects  to 
elicit  by  its  means  from  the  defendant,  or  when  he  needs 
the  matters  thus  disclosed  to  supplement  and  aid  other  evi- 
dence which  he  furnishes ;  ^  or  indeed  whenever  the  court 
can  fairly  suppose  that  facts  and  circumstances  discovered 
by  means  of  the  bill  can  be  in  any  way  material  to  the  com- 
plainant therein  in  maintaining  his  cause  of  action  or  de- 
fense in  a  suit."^  ® 

§  191,  6  Montague  v.  Dudman,  2  Ves.  Sr.  398 ;  Finch  v.  Finch,  2  Ves. 
Sr.  492;  March  v.  Davidson,  9  Paige,  580;  Many  v.  Beekman  Iron  Co., 
9  Paige,  188;  Leggett  v.  Postley,  2  Paige,  599;  Deas  v.  Harvie,  2  Barb, 
Ch.  448 ;  Seymour  v.  Seymour,  4  Johns.  Ch.  409 ;  Gelston  v.  Hoyt,  1  Johns. 
Ch.  54;  Metier  v.  Metier,  19  N.  J.  Eq.  457;  Turner  v.  Dickerson,  9  N.  J. 
Eq.  140 ;  Baxter  v.  Earner,  7  Ired.  Eq.  239. 

§  191,  7  Peck  V.  Ashley,  12  Met.  478 ;  Thomas  v.  Tyler,  3  Younge  &  C. 
255.  The  following  are  some  of  the  most  recent  instances  of  the  exercise 
of  this  jurisdiction  by  the  American  equity  courts:  Continental  Life  Ins. 
Co.  V.  Webb,  54  Ala.  688;  Merchants'  Nat.  Bank  v.  State  Nat.  Bank,  3 
Cliff.  201;  Hoppock  v.  United,  etc.,  R.  R.,  27  N.  J.  Eq.  286;  French  v. 
Rainey,  2  Tenn.  Ch.  640 ;  French  v.  First  Nat.  Bank,  7  Ben.  488 ;  Kearney 
V.  Jeffries,  48  Miss.  343;  Heath  v.  Erie  R.  R.,  9  Blatehf.  316;  Buckner  v. 
Ferguson,  44  Miss.  677;  Shotwell  v.  Smith,  20  N.  J.  Eq.  79. 

§  191,  (c)  See,  also,  Attorney-Gen-  sary  to  allege  in  the  bill  that  the 
eral  v.  Gaskill,  L.  E.  20  Ch.  Div.  519.  plaintiff  has  no  other  witness  or  evi- 
"While  it  is  necessary  in  a  bill  of  dence  to  establish  the  facts  of  which 
discovery  to  show  that  the  discovery  the  discovery  is  sought,  for  he  is  cn- 
is  material  to  the  support  of  the  titled  to  it,  if  it  be  merely  cumu- 
party's  claim  asking  the  same  and  lative  evidence  of  material  facts"; 
the  manner  in  which  it  is  material,  Eussell  v.  Dickeschied,  24  W.  Va.  61. 
it  is  not  necessary  to  aver  that  the  "When  the  plaintiff  has  any  case  to 
discovery  is  absolutely  necessary  make  out,  he  has  a  right  of  discov- 
er indispensable  for  that  purpose.  ery  of  anything  that  may  assist  him 
It  will  be  sufficient  to  state  and  in  proving  his  case,  or  even  tho 
show  that  it  is  material  evidence.  smallest  title  of  it";  Jenkins  v. 
Thus,  for  example,  it  is  not  necea-  Bushby,   35   Law   J.   Ch.   400;    Rey- 


265 


THE    AUXILIARY    JUEISDICTION. 


§192 


§  192.  Its  Origin. — The  practice  of  tlie  court  of  chan- 
cery to  ''probe  the  conscience"  of  the  defendant,  and  to 
compel  him  to  make  full  disclosure  of  matters  within  his 
knowledge  in  all  suits  Ijrought  for  relief,  was  coeval  with 
the  establishment  of  the  court  itself,  and  was  one  of  the 
principal  means  by  which  it  rapidly  extended  its  general 
jurisdiction.  The  auxiliary  jurisdiction  to  compel  dis- 
covery alone  without  relief,  in  aid  of  proceedings  at  law, 
was  somewhat  later  in  its  origin,  but  still  was  exercised 
at  an  early  day.  I  condense  a  brief  account  of  its  his- 
tory from  the  learned  treatise  of  Mr.  Spence.i  In  the 
reign  of  Edward  IV.  it  was  held  that  the  donee  in  tail 
might  have  discovery  of  a  deed,  in  possession  of  another, 
in  aid  of  his  title. ^     As  early  as  the  reign  of  Henry  VI. 

§  192,  1  See  1  Spenee's  Eq.  Jur.  677-680. 

§  192,  2  1  Spenee's  Eq.  Jur.  678;  9  Edw.  IV.  41;  Bro.  Abr.,  tit.  Con- 
science, 3. 


nolds  V.  Burgess  Sulphite  Fibre  Co., 
71  N.  H.  332,  93  Am.  St.  Rep.  535, 
57  L.  R.  A.  949,  51  Atl.  1075.  It  is 
Bufficient  if  it  appears  that  the  dis- 
covery is  "indispensable  to  justice"; 
Handley  v.  Hiffin,  84  Ala.  600,  4 
South.  725.  "He  must  also  show- 
that  he  is  justly  entitled  thereto, 
as  evidence  in  connection  with  the 
preparation  and  trial  of  his  case, 
and  that  such  evidence  is  necessary 
to  enable  him  fully  to  prosecute  or 
defend  the  same";  Gorman  v.  Bani- 
gan,  22  R.  I.  22,  46  Atl.  38.  See, 
also,  Gallon  Iron  Works  Co.  v.  Ohio 
Corrugated  Culvert  Co.  (C.  C.  A.), 
244  Fed.  427  (a  substantial  necessity 
for  discovery  must  be  shown;  no 
basis  for  such  a  suit  if  the  disclosure 
sought  is  of  evidence  comparatively 
unimportant  or  merely  cumulative, 
or  if  the  plaintiff  already  has  proof 
of  the  things  alleged).  Where  the 
facts  are  within  plaintiff's  knowl- 
edge,  as   where    he   seeks    discovery 


and  account  from  a  corporation  to 
whose  books  he  has  access,  a  discov- 
ery will  be  denied;  Kane  v.  Schuyl- 
kill Fire  Ins.  Co.,  199  Pa.  St.  205, 
48  Atl.  989;  but  see,  distinguishing 
this  case,  Townsend  v.  Miles,  167 
Ala.  514,  52  South.  651  (discovery 
may  be  proper  where  complainants 
make  charges  of  irregularities  in  the 
books  on  information  and  belief,  and 
there  is  nothing  to  show  that  they 
could  make  legal  and  accurate  proof 
of  the  facts  alleged).  Where  the 
bill  is  for  discovery  and  relief,  it  has 
been  held  that  it  must  allege  that 
the  facts  are  known  to  no  other  per- 
son than  the  defendant;  Vennum  v. 
Davis,  35  111.  568.  But  such  an  al- 
legation is  not  necessary  when  the 
bill  is  filed  purely  for  discovery  in 
aid  of  a  suit  at  law;  Robson  v. 
Doyle,  191  111.  566,  61  N.  E.  43o; 
Marsh  v.  Davison,  9  Paige,  580;  Cecil 
Nat.  Bank  v.  Thurber,  59  Fed.  913, 
8  C.  C.  A.  365,  8  U.  S.  App.  496. 


§  192  EQUITY    JURISPRUDENCE.  266 

chancery  entertained  jurisdiction  to  compel  a  discovery 
when  it  was  needed  to  sustain  an  action  at  law,  without 
reference  to  any  equitable  question.  From  his  reign 
onwards,  bills  were  entertained  expressly  for  discovery, 
to  enable  the  plaintiff  to  commence  or  prosecute  proceed- 
ings at  law.3  In  the  reign  of  Queen  Elizabeth  the  court 
of  chancery  was  accustomed  to  retain  jurisdiction  of  cases 
for  the  decision  of  purely  legal  questions,  where  the  par- 
ties had  resorted  to  the  court  simply  for  the  purposes  of 
discovery.  According  to  Lord  Coke,  this  practice  led  the 
common-law  judges,  in  a  case  referred  to  them  by  the 
chancellor,  to  adopt  a  solemn  resolution  by  way  of  protest, 
and  their  action  caused  the  chancellor  to  abridge  this  exer- 
cise of  the  equity  jurisdiction.'*  The  limit  thus  placed 
upon  the  jurisdiction  to  grant  relief,  where  the  discovery 
is  concerning  matters  purely  legal,  and  no  equitable  fea- 
tures or  incidents  are  involved  in  the  controversy^  has 
been  generally  recognized  and  adopted  by  the  subsequent 
English  chancellors.  While  the  principles  as  to  discovery 
were  thus  settled  at  an  early  day,  the  system  of  rules  which 
control  its  exercise  was  established  by  the  chancellors  sub- 
sequent to  Lord  Nottingham.  The  fundamental  concep- 
tion of  this  auxiliary  jurisdiction  to  obtain  evidence  by 
means  of  a  suit  for  discovery  was  undoubtedly  borrowed 
from  the  Roman  law  procedure.  That  law  had  provided 
actiones  interrogatories  by  which  defendants  were  obliged 
to  make  answer  under  oath  to  questions  propounded,  and 
actiones  ad  exJiihendum  in  which  the  decree  compelled  the 
defendant  to  produce  some  specific  thing.  The  former 
class  had,  as  it  appears,  become  obsolete  in  the  time  of 

§  192,  3  1  Spenee's  Eq.  Jur.  678 ;  36  Henry  VI.  26 ;  Caiy.  21. 

§  192,  4  1  Spenee's  Eq.  Jur.  678,  679;  4  Inst.  84,  85.  The  resolution, 
so  far  as  touches  this  subject,  was  as  f oUows :  "When  any  title  of  freehold 
or  other  matter  determinable  by  the  common  law  comes  incidentally  in  this 
court  (i.  e.,  of  chancery),  the  same  cannot  be  decided  in  chancery,  but 
ought  to  be  referred  to  the  trial  of  the  common  law." 


267  THE    AUXILIARY    JURISDICTION".  §  193 

Justinian;  but  the  general  purposes,  objects,  and  methods 
of  the  proceeding  are  described  in  the  treatises  and  com- 
pilations of  the  Roman  law  which  have  survived  to  our 
own  time.5 

§  193.  Effect  of  Modern  Statutes.^ — ^Modern  legislation 
has  greatly  interfered  with  the  practical  exercise  of  the 
auxiliary  jurisdiction  for  a  discovery,  by  introducing 
simpler  and  more  efficacious  methods  in  its  stead,  and  by 
thus  rendering  a  resort  to  it  unnecessary  and  even  inex- 
pedient. The  important  question  is,  whether  the  suit  for 
a  discovery  alone,  without  relief,  has  been  directly  or  in- 
directly abolished  or  superseded  by  the  recent  statutes. 
English  statutes,  passed  not  many  years  since,  gave  full 
power  and  authority  to  any  party  to  an  action  or  proceed- 
ing at  law  to  examine  his  opponent  under  oath  as  a  wit- 
ness ;  ^  and  full  power  to  the  common-law  courts  to  compel 
any  party  to  an  action  to  produce  documents. ^  These 
permissive  statutes,  it  was  held,  did  not  interfere  with  the 
equity  jurisdiction  for  discovery  in  aid  of  a  cause  of  action 
or  defense  at  law.^  More  recent  legislation  of  Parliament 
has  gone  much  further.  The  supreme  court  judicature  act 
of  1873,  which  consolidated  all  the  superior  courts  into  one 
tribunal  having  jurisdiction  of  all  possible  matters,  except 
those  purely  ecclesiastical,  which  abolished  the  distinction 
between  legal  and  equitable  actions,  and  permitted  all  legal 
and  equitable  causes  of  action,  defenses,  and  remedies  to 
be  united  in  one  proceeding,  and  which  provided  for  the 
examination  of  either  party  upon  interrogatories  at  the 

§  192,  5  Phillimore's  Private  Law  among  the  Romans,  182. 

§  193,  114  &  15  Vict.,  chap.  99,  §  2. 

§193,  2  17  &  18  Vict.,  chap.  125,  §§  51,  52. 

§  193,  3  British  Empire  Ship.  Co.  v.  Somes,  3  Kay  &  J.  433 ;  Lovell  v. 
Galloway,  17  Beav.  1.  This  conclusion  is  reached  by  applying  the  general 
doctrine  that  equity,  having  once  acquired  jurisdiction  over  a  given  subject- 
matter,  cannot  lose  that  jurisdiction  by  the  mere  fact  that  the  common- 
law  courts  have  also  become  invested  with  the  same  powers. 

§  193,  (a)  Cited  with  approval  in  South.  725;  Chapman  v.  Lee,  45  Ohio 
Handley    v.    Hiffin,    84    Ala.    600,    4        St.  356,  13  N.  E.  736, 


§  193  EQUITY    JUEISPRUDENCE.  268 

instance  of  his  adversary,  and  for  tlie  production  and  in- 
spection of  documents  by  either  party  at  the  requirement 
of  the  other,  in  any  action,  has  superseded  and  practically 
put  an  end  to,  even  if  not  directly  abrogated,  the  suit  for  a 
discovery  as  a  branch  of  the  auxiliary  jurisdiction  of 
equity.'*^  Under  this  new  method  of  obtaining  discovery 
from  the  opposite  party  in  any  kind  of  action,  and  of  com- 
pelling the  production  of  documents  by  means  of  interroga- 
tories filed  during  the  pendency  of  the  action  by  either 
the  plaintiff  or  the  defendant,  it  is  held  that  all  the  doc- 
trines and  rules  concerning  the  subject-matter  of  discovery 
and  concerning  the  documents  whose  production  can  be 
compelled,  which  had  been  established  by  courts  of  equity, 
are  still  in  force,  and  control  the  same  matters  in  the  new 
procedure. 5  c     Similar  modes  of  procuring  evidence  from 

§  193,  4  Supreme  Court  of  Judicature  Act  of  1873,  36  &  37  Vict.,  chap. 
66,  Schedule,  Rules  of  Procedure,  rules  25-27.  These  rules  provide  that 
in  any  action  either  party  may  obtain  discovery  from  the  other  on  oath 
upon  interrogatories;  and  that  the  court  may  order  any  party  to  discover, 
produce,  and  permit  inspection  of  any  documents,  etc.,  in  his  possession 
or  under  his  control,  etc.  In  other  words,  everything  which  could  be  done 
by  a  bill  for  discovei-y  can  be  accomplished  in  a  more  simple,  direct,  and 
speedy  mode  prescribed  by  the  statute.  The  essential  principles  of  this 
statute  and  of  the  system  which  it  established  for  England  are,  as  I  have 
before  stated,  identical  with  the  principles  and  methods  of  the  reformed 
procedure  prevailing  in  more  than  half  of  the  American  commonwealths. 

§  193,  5  Anderson  v.  Bk.  of  Br.  Columbia,  L.  R.  2  Ch.  Div.  644;  Cashin 
V.  Craddock,  L.  R.  2  Ch.  Div.  140 ;  Hoffman  v.  Postell,  L.  R.  4  Ch.  673. 

§  193,   (b)  As  to  the  effect  of  tliis  pose  of  obtaining  from  the  opposite 

statute  upon  the  equitable  rule  that  party    information    as    to    material 

discovery    would    not    be    compelled  facts,  which  are  not  within  his  own 

against  a  honu  fide  purchaser  in  aid  knowledge,  and  are  within  the  knowl- 

of  a  legal  action,  see  post,  §  200.     In  edge  of  the  opposite  party,  but  also 

Attorney-General  v.  Gaskill,  L.  K.  20  for   the   purpose   of   obtaining   from 

Ch.  Div.  519,  the  right  of  discovery  the  opposite  party  admissions  which 

as  existing  in  the  court  of  chancery  will  make  it  unnecessary  for  him  to 

was  held  still  to  exist  except  so  far  enter  into  evidence  as  to  the  facts 

as   it  is  modified  by   the  judicature  admitted. 

acts   and  the   general   orders,   and  a  §  193,   (c)   See,  also,  Attomey-Gen- 

party  still  has  a  right  to  exhibit  in-  eral  v.  Gaskill,  L.  E.  20  Ch.  Div.  519. 
terrogatories,  not  only  for  the  pur- 


269  THE    AUXILIARY    JURISDICTION.  §  193 

the  opposite  party  by  means  of  interrogatories  have  been 
adopted  by  statute  in  several  of  our  states,  although  in 
none  of  them  does  the  matter  seem  to  be  so  carefully  regu- 
lated and  so  efficacious  as  in  England.  Passing  to  the 
legislation  of  this  country,  the  reformed  procedure,  which 
was  first  enacted  in  the  Code  of  Civil  Procedure  of  New 
York  in  1848,  and  has  now  extended  to  more  than  half  the 
states  and  territories  of  this  Union,  and  which  is  identical 
in  its  fundamental  principles,  doctrines,  and  methods  with 
the  English  supreme  court  of  judicature  act,  has  in  like 
manner  superseded  and  practically,  at  least,  destroyed  the 
equitable  suit  for  discovery  without  any  other  relief,  wher- 
ever the  system  prevails.  In  some  of  these  states  the  suit 
for  ''discovery,"  properly  so  called,  is  expressly  abol- 
ished by  the  statute ;  and  in  all  of  them  it  is  utterly  incon- 
sistent with  both  the  fundamental  theory  and  with  the  par- 
ticular doctrines,  rules,  and  methods  of  the  reformed 
procedure.  In  the  other  commonwealths,  where  the  com- 
mon-law and  the  equity  jurisdictions  are  still  preserved 
distinct  from  each  other,  whether  possessed  by  the  same 
court,  or  as  in  a  very  few  states,  by  separate  tribunals,  the 
statutes  permit  the  parties  to  all  civil  actions  and  proceed- 
ings, both  at  law  and  in  equity,  "to  testify  in  their  own 
behalf,  and  to  be  examined  as  witnesses,  in  the  ordinary 
manner,  on  behalf  of  their  adversaries ;  and  have  also  pro- 
vided summary  and  simple  modes  for  comjDelling  the  dis- 
closure and  production  and  inspection,  by  the  parties  to 
any  action,  of  documents,  books,  and  the  like  material,  to 
the  opposite  party,  for  maintaining  his  cause  of  action  or 
defense.  Notwithstanding  these  great  changes,  made  by 
statutes,  which  seem  to  remove  the  very  foundation  for 
any  interposition  by  equity,  it  has  generally  been  held  that 
the  legislature  has  not  abridged  nor  affected  the  auxiliary 
equitable  jurisdiction  to  entertain  suits  for  mere  discovery 
of  evidence  and  production  of  documents,  and  that  such 
equitable   jurisdiction    still   exists,    where    not    expressly 


§193 


EQUITY   JURISPEUDENCE. 


270 


abolished  by  the  statutes.^  ^    This  conclusion,  however,  is 
not  universal.     In  some  cases  it  has  been  held  that  the 

§193,  6  Cannon  v.  McNab,  48  Ala.  99;  Millsaps  v.  Pfeiffer,  44  Miss. 
805;  Shotwell  v.  Smith,  20  N.  J.  Eq.  79.  And  see  also  Buckner  v.  Fer- 
guson, 44  Miss.  677;  Kearney  v.  Jeffries,  48  Miss.  343;  Continental  Life 
Ins.  Co.  V.  Webb,  54  Ala.  688 ;  Hoppock  v.  United,  etc.,  R.  R.,  27  N.  J. 
Eq.  286;  French  v.  First  National  Bk.,  7  Ben.  488. 


§193,  (d)  Auxiliary  Jurisdiction 
not  Abridged. — This  portion  of  the 
text  is  quoted  in  Nixon  v.  Clear 
Creek  Lumber  Co.,  150  Ala.  602,  9 
L.  R.  A.  (N.  S.)  1255,  43  South.  805. 
The  text  is  cited  in  Southern  Pacific 
E.  Co.  V.  United  States,  200  U.  S. 
341,  50  L.  Ed.  507,  26  Sup.  Ct.  296; 
in  Beem  v.  Farrell  (Iowa),  108  N.  W. 
1044;  and  in  Wright  v.  Superior 
Court,  139  Cal.  469,  73  Pac.  145,  in 
the  dissenting  opinion  of  Shaw,  J., 
where  the  following  cases  are  also 
cited,  among  others:  Post  v.  Toledo, 
etc.,  Co.,  144  Mass.  341,  59  Am.  Rep. 
86,  11  N.  E.  540;  Union  Passenger 
R'y  Co.  V.  Mayor,  71  Md.  238,  17 
Atl.  933;  Howell  v.  Ashmore,  9  N.  J. 
Eq.  91,  57  Am.  Dec.  371;  Elliston  v. 
Hughes,  1  Head  (Tenn.),  227;  Grimes 
V.  miliary,  38  111.  App.  246;  Ken- 
dallville  Eefrigerator  Co.  v.  Davis, 
40  111.  App.  616;  Ames  v.  N.  J.  F. 
Co.,  12  N.  J.  Eq.  68,  72  Am.  Dec.  385. 
See  further  Lancey  v.  Eandlett,  80 
Me.  169,  6  Am.  St.  Rep.  169,  13  Atl. 
686;  Handley  v.  Hiffin,  84  Ala.  600, 
4  South.  725;  Shackelford  v.  Bank- 
head,  72  Ala.  476;  Eussell  v.  Dickea- 
chied,  24  W.  Va.  61;  Kelley  v. 
Boettcher,  85  Fed.  55,  29  C.  C.  A.  14; 
Indianapolis  Gas  Co.  v.  City  of  In- 
dianapolis, 90  Fed.  196;  Miller  v. 
U.  S.  Casualty  Co.,  61  N.  ,J.  Eq.  110, 
47  Atl.  509;  Wood  v.  Hudson,  96  Ala. 
469,  11  South,  630;  Hurricane  Tel. 
Co.  V.  Mohler,  51  W.  Va.  1,  41  S.  E. 
421;  Colgate  v.  Compagnie  Francaise 
du  Telegraphc,  23  Fed.  82;  Clark  v. 


Ehode  Island  Locomotive  Works,  24 
E.  L  307,  53  Atl.  47;  Eeynolds  v. 
Burgess  Sulphite  Fibre  Co.,  71  N.  H. 
332,  346,  93  Am.  St.  Rep.  535,  550,  57 
L.  R.  A.  949,  51  Atl.  1075  (where  dis- 
covery is  essential  prior  to  the  trial). 
To  the  same  effect,  see  the  following 
recent  cases:  Carpenter  v.  Winn,  221 
U.  S.  533;  55  L.  Ed.  842,  31  Sup.  Ct. 
683;  Kurtz  v.  Brown,  152  Fed.  372, 
11  Ann.  Caa.  576,  81  C.  C.  A.  498, 
affirming  134  Fed.  663;  General  Film 
Co.  V.  Sampliner,  232  Fed.  95,  146 
C.  C.  A.  287  (federal  courts  still  have 
jurisdiction  to  compel  production  of 
documents  for  inspection  before 
trial) ;  Pressed  Steel  Car  Co.  v. 
Union  Pac.  E.  Co.,  240  Fed.  135; 
Gulf  Compress  Co.  v.  Jones  Cotton 
Co.,  157  Ala.  32,  47  South.  251;  Sloss- 
Sheffield  Steel  &  Iron  Co.  v.  Mary- 
land Casualty  Co.,  167  Ala.  557,  52 
South.  751;  Carmichael  v.  Pond,  190 
Ala.  494,  67  South.  384;  Phiel  v. 
Williams,  64  Fla.  387,  59  South.  897; 
American  Security  &  Trust  Co.  v. 
Brooks,  225  Mass.  500,  114  N.  E.  732; 
Keystone  Lumber  Yard  v.  Yazoo  & 
M.  V.  E.  Co.,  96  Miss.  116,  Ann.  Cas. 
1912A,  801,  50  South.  445.  A  bill  for 
discovery  against  a  corporation  has 
been  allowed,  although  all  the  offi- 
cers are  by  statute  made  competent 
witnesses  for  either  party.  The 
court,  in  Continental  Nat.  Bk.  v. 
Heilman,  66  Fed.  184,  speaking  of  an 
objection  to  the  jurisdiction,  said: 
"But  whatever  force  this  suggestion 
might  be  entitled  to  where  a  discov- 


271 


THE    AUXILIARY    JURISDICTION. 


§193 


legislation,  by  abolishing  all  the  grounds  upon  which  the 
suit  for  a  discovery  was  based,  has  necessarily  abrogated 
the  jurisdiction  itself."^®     This  abridgment  of  the  technical 

§  193,  7  Riopelle  v.  Doellner,  26  Mich.  102.  To  the  same  effect,  also, 
is  Heath  v.  Erie  R.  R.,  9  Blatchf.  316.  In  a  suit  in  equity  a  cross-bill  was 
filed  praying  discovery  and  relief.  From  certain  proceedings  and  stipu- 
lations of  the  parties,  the  court  held  that  as  a  bill  for  relief  this  cross- 
bill was  unnecesssary  and  nugatoi'y,  so  that  it  was  only  a  cross-bill  for  a 
discovery  without  relief.  With  respect  to  such  a  bill,  the  court  held  that 
the  statutes  of  Congress,  act  of  July  6,  1862,  section  1  (12  U.  S.  Stats, 
at  Large,  p.  588),  and  act  of  July  2,  1864  (13  U.  S.  Stats,  at  Large, 
p.  351),  permitting  parties  to  be  witnesses,  had  necessarily  abrogated  the 
equity  suit  for  a  mere  discovery  without  relief. 


ery  is  sought  from  a  natural  person, 
it  has  none  in  such  a  case  as  the 
present,  for  the  corporation  cannot 
be  sworn  and  examined  as  a  witness; 
and  it  is  apparent  that  in  many  cases 
a  discovery  by  a  corporation  may  be 
important  to  attain  the  ends  of  jus- 
tice." To  same  eifect,  see  Indianap- 
olis Gas  Co.  V.  City  of  Indianapolis, 
90  Fed.  196. 

§  193,  (e)  Jurisdiction  Abridged  or 
Abrogated. — The  text  is  cited  to  this 
effect  in  Turnbull  v.  Crick,  63  Minn. 
91,  65  N.  W.  135.  The  court  said: 
"A  bill  of  discovery  was  born  of 
necessity,  for  there  was  then  no  other 
waj'  by  which  a  party  to  an  action 
could  secure  the  benefit  of  facts 
within  the  exclusive  personal  knowl- 
edge of  his  adversary,  or  of  docu- 
ments in  his  exclusive  possession; 
but  the  remedies  provided  by  our 
Civil  Code  and  other  statutes,  giv- 
ing a  party  the  right  to  call  his 
adversary  as  a  witness,  and  compel 
the  production  of  books  and  docu- 
ments, have  swept  away  every  ground 
and  reason  for  a  bill  of  discovery. 
.  .  .  These  remedies,  furnished  by 
our  Reform  Code  of  Procedure,  are 
not  simply  cumulative,  but  abrogate 
bills  of   discovery  and  the  practice 


and  procedure  in  the  former  court 
of  chancery,  so  far  as  they  are  in- 
consistent therewith."  The  text  is 
also  cited  in  Wright  v.  Superior 
Court,  139  CaL  469,  73  Pac.  145, 
opinion  of  Van  Dyke,  J.,  but  the 
court  left  the  question  undecided. 
It  is  sometimes  said  that  the  gen- 
eral rule  is  that  discovery  will  not 
be  compelled  from  any  persons  who 
can  be  made  witnesses  in  the  cause 
in  aid  of  which  the  discovery  is 
sought:  Eeddington  v.  Lanahan,  59 
.  Md.  429;  Rindskopf  v.  Platto,  29 
Fed.  130;  Babbott  v.  Tewksbury,  46 
Fed.  86;  Ex  parte  Boyd,  105  U.  S. 
657;  Brown  v.  M'Donald,  130  Fed. 
964,  reviewing  many  cases  in  the 
Federal  courts;  London  Guarantee  & 
Accident  Co.  v.  Doyle,  130  Fed.  719. 
In  Michigan  it  is  held  that  "since 
parties  have  become  general  wit- 
nesses under  our  statutes,  a  bill  of 
discovery  will  not  lie  where  the  facts 
sought  to  be  discovered  are  within 
the  knowledge  of  any  witness":  Mc- 
Creery  v.  Bay  Circuit  Judge,  93 
Mich.  463,  53  N.  W.  613;  Shelden  v. 
Walbridge,  44  Mich.  251,  6  N.  W. 
681.  Hence  such  a  bill  is  no  longer 
allowable.  In  Nebraska  it  is  held 
that  "under  the  Code,  discovery  has 


§  194  EQUITY    JURISPEUDENCE.  272 

**  discovery, "  it  should  be  carefully  remembered,  does  not 
extend  to  the  discover}^  or  compelling  defendants  to  make 
admissions  or  disclosures  by  means  of  the  pleadings,  in 
suits  brought  for  relief/  In  some  of  the  states,  however, 
which  still  retain  the  ancient  common-law  and  equitable 
jurisdictions,  the  obtaining  evidence  by  means  of  inter- 
rogatories filed  in  the  action  by  either  party,  instead  of  by 
means  of  answers  to  allegations  and  questions  contained 
in  the  bill  or  cross-bill, — substantially  in  accordance  with 
the  present  English  procedure, — has  been  provided  for  by 
recent  statute;  and  this  statutory  change  may  have  abro- 
gated the  mode  of  discovery  as  an  incident  and  part  of  the 
pleadings  in  suits  for  relief,  even  though  it  may  not  have 
abolished  the  suit  for  a  discovery  alone  without  relief. 

§  194.^  It  follows  from  the  foregoing  statements  that 
the  suit  for  a  discovery,  as  a  branch  of  the  auxiliary  juris- 
diction, is  now  confined  to  a  portion  only  of  the  states  and 
territories;  and  even  in  those  commonwealths  a  resort  to 

ceased  to  be  one  of  the  objects  with  approval  in  Le  May  v.  Baxter, 
sought  in  a  court  of  equity."  La-  11  Wash.  649,  40  Pac.  122.  This 
master  v.  Scofield,  5  Neb.  148;  Kuhl  point  was  directly  decided  in  the 
V.  Pierce  County,  44  Neb.  584,  62  case  of  Smythe  v.  Henry,  41  Fed. 
N.  W.  1066.  See,  also.  Chapman  v.  715,  where  discovery  was  prayed  in 
Lee,  45  Ohio  St.  356,  13  N.  E'.  736;  '  a  suit  for  both  equitable  relief  and 
Preston  v.  Smith,  26  Fed.  884;  Pa-  discovery.  The  court  said,  in  an- 
ton  V.  Majors,  46  Fed.  210;  Safford  swer  to  an  objection  that  full  power 
V.  Ensign  Mfg.  Co.  (C.  C.  A.),  120  to  examine  witnesses  had  been  con- 
Fed.  480  (^dictum)  ;  Dncktown  Sul-  f erred  upon  the  law  court's :  "The 
phur,  Copper  &  Iron  Co.  v.  Fain,  109  mere  fact  that  statutes  have  con- 
Tenn.  56,  70  S.  W.  813.  See,  also,  ferred  upon  courts  of  law  the  power 
the  following  recent  cases:  Brown  v.  to  compel  parties  to  the  record  to 
Corey,  191  Mass.  189,  77  N.  E'.  838  testify  as  witnesses  does  not  deprive 
(bill  cannot  be  maintained  for  dis-  a  party  in  courts  of  the  United 
covery  alone,  if  not  incidental  to  States  of  the  right  of  discovery  in 
any  relief  which  a  court  of  equity  equity  when  seeking  equitable  relief. 
has  the  right  to  grant) ;  Vogelsong  Such,  remedy  is  not  as  effectual  as 
V.  St.  Louis  Wood  Fibre  Plaster  Co.,  the  equitable  remedy." 
147  Mo.  App.  578,  126  S.  W.  804;  §194,  (a)  Cited  with  approval  in 
Hamner  v.  Garrett,  63  Tex.  Civ.  App.  Chapman  v.  Lee,  45  Ohio  St.  356,  13 
208,  132  S.  W.  951,  133  S.  W.  1058.  N.  E.  736. 
§  193,  (f )  This  sentence  was  quoted 


273  THE    AUXILIARY    JURISDICTION.  §  195 

it  is  quite  infrequent.  For  this  reason,  an  extensive  and 
minute  discussion  of  the  rules  which  govern  it  seems  to 
be  unnecessary.  On  the  other  hand,  the  principles  and 
doctrines  relating  to  discovery,  which  have  been  settled  by 
courts  of  equity,  and  which  determine  what  facts  parties 
can  be  compelled  to  disclose,  and  what  documents  to  pro- 
duce, and  under  what  circumstances  the  disclosure  or  pro- 
duction can  be  obtained,  will  still  continue  to  be  recognized 
by  the  courts,  and  to  regulate  their  action  in  enforcing  the 
examination  of  parties  and  the  production  of  writings  by 
means  of  the  more  summary  statutory  proceedings. ^  ^ 
The  abolition  or  discontinuance  of  the  technical  ''dis- 
covery" has  not  abrogated  these  principles  and  doctrines, 
nor  dispensed  with  their  statement,  at  least  in  a  brief  and 
condensed  form. 

§  195.  General  Doctrines  When  Discovery  will  be  En- 
forced.^— As  this  auxiliary  jurisdiction  was  contrived  to 
supply  a  great  defect  in  the  ancient  common-law  methods, 
which  was  a  constant  source  of  wrong  to  suitors  at  law, 
and  as  it  was  intended  to  promote  right  and  justice,  dis- 
covery was,  from  the  outset,  favored  by  courts  of  equity; 
and  as  a  general  doctrine,  it  will  always  be  enforced,  un- 
less some  recognized  and  well-established  objection  exists 
in  the  particular  case  to  prevent  or  to  limit  its  operation. 
This  affirmative  proposition  is  so  generally  true  that  the 
discussion  of  the  subject  mainly  consists  in  stating  and 
explaining  the  objections  which  have  been  established,  and 
which  alone  can  avail  to  hinder  the  exercise  of  the  juris- 

§194,  1  As  illustrations,  see  the  following 'eases:  Anderson  v.  Bk.  of 
Dr.  Columbia,  L.  R.  2  Ch.  Div.  644;  Cashiu  v.  Craddock,  L.  R.  2  Ch.  Div. 
140 ;  Hoffman  v.  Postill,  L.  R.  4  Ch.  673. 

§194,    (b)    Cited  to  this  effect  in  Co.,  71  N.  H.  332,  93  Am.  St.  Rep. 

Arnold  v.  Pawtuxet  Val.  Water  Co.,  535,  57  L.  R.  A.   949,  51  Atl.  1075; 

18   R.   I.   189,    19   L.   E.   A.    602,   26  Sloss-Shoffiold    Steel    &   Iron    Co.    v, 

Atl.  55.  Maryland  Casualty  Co.,  167  Ala.  557, 

§  195,   (a)   Cited  with   approval  in  52  South.  751. 
Reynolds  v.  Burgess   Sulphite  Fibre 
1—18 


§  195  EQUITY    JURISPRUDENCE.  274 

diction.l  While  thus  made  effective,  the  jurisdiction  is 
also  carefully  guarded,  so  as  not  to  infringe  upon  the  de- 
fendant's rights.  Its  object  is  to  promote  justice  by  elicit- 
ing facts  material  to  the  plaintiff's  contention;  not  to  com- 
pel the  defendant  to  disclose  matters  injurious  to  himself 
or  prejudicial  to  his  own  case.  "While  the  plaintiff  is  suffi- 
ciently aided  in  establishing  his  own  side  of  the  contro- 
versy, the  defendant  is  also  carefully  guarded.  In  stating 
the  matters  which  are  affirmatively  requisite  to  the  mainte- 
nance of  a  suit  for  discovery,  and  the  objections  which  may 

§  195,  1  Jeremy's  Eq.  Jur.  257-269.  In  Wigram  on  Discovery,  21,  22, 
the  general  principles  are  summed  up  in  the  following  propositions: 
"1.  It  is  the  right,  as  a  general  rule,  of  the  plaintiff  in  equity  to  examine 
the  defendant  upon  oath  as  to  all  matters  of  fact  which,  being  well  pleaded 
in  the  bill,  are  material  to  the  proof  of  the  plaintiff's  case,  and  which  the 
defendant  does  not,  by  his  form  of  pleading,  admit.  2.  Courts  of  equity, 
as  a  general  rule,  oblige  a  defendant  to  jDledge  his  oath  to  the  truth  of  his 
defense;  with  this  qualification,  the  Vight  of  a  plaintiff  in  equity  to  the 
benefit  of  the  defendant's  oath  is  limited  to  a  discoveiy  of  such  matei'ial 
facts  as  relate  to  the  plaintiff's  case;  and  it  does  not  extend  to  the  dis- 
covery of  the  manner  in  which,  or  of  the  evidence  by  means  of  which, 
the  defendant's  case  is  to  be  established,  or  to  any  discovery  of  the  de- 
fendant's evidence."  In  Cooper's  Eq.  PL,  chap.  3,  §  3,  p.  189,  the  objec- 
tions which  will  prevent  a  discovery  are  thus  summarized:  "1.  That  the 
subject  is  not  cognizable  in  any  municipal  court  of  justice;  2.  That  the 
court  will  not  lend  its  aid  to  obtain  a  discovery  for  the  particular  court 
for  which  it  is  wanted;  3.  That  the  plaintiff  is  not  entitled  to  a  discovery, 
by  reason  of  some  personal  disability;  4.  That  the  plaintiff  has  no  title 
to  the  character  in  which  he  sues;  5.  That  the  value  of  the  suit  is  beneath 
the  digiiity  of  the  court ;  6.  That  the  plaintiff  has  no  interest  in  the  subject- 
matter,  or  title  to  the  discovery  required,  or  that  an  action  will  not  lie 
for  which  it  is  wanted;  7.  That  the  defendant  is  not  answerable  to  the 
plaintiff,  but  that  some  other  person  has  a  right  to  call  for  the  discovery; 

8.  That  the  policy  of  the  law  exempts  the  defendant  from  the  discovery; 

9.  That  the  defendant  is  not  bound  to  discover  his  own  title;  10.  That  the 
discovery  is  not  material  in  the  suit ;  11.  That  the  defendant  is  a  mere  wit- 
ness; 12.  That  the  discoveiy  called  for  would  criminate  the  defendant." 
It  should  be  observed  that  both  these  extracts  relate  to  discoveiy  as  an 
incident  of  ordinai-y  suits  for  relief,  as  well  as  to  discovery  proper;  indeed, 
some  passages  in  each  can  only  apply  to  the  former  mode  of  compelling 
the  defendant  to  disclose  facts. 


275  THE    AUXILIARY    JURISDICTION".  §  196 

negatively  operate  to  defeat  it,  I  shall  divide  tlie  discus- 
sion into  the  following  principal  heads:  1.  What  judicial 
proceeding,  in  what  courts,  will  be  aided  by  "discover}'" 
in  equity;  2.  The  parties,  their  situation  and  relations  with 
each  other,  in  order  that  a  discovery  may  be  enforced; 
3.  The  nature,  subject-matter,  and  object  of  the  discovery 
itself, — that  is,  the  matters  and  facts  of  which  the  plain- 
tiff in  the  equity  suit  may  inquire  and  compel  a  discovery, 
and  the  defendant  must  answer  and  make  discovery;  4. 
The  defendant's  answer  in  the  discover}^  suit  when,  how 
far,  and  by  whom  it  may  be  used  as  evidence. 

§  196.  I.  What  Judicial  Proceedings,  in  What  Courts, 
will  be  Aided  by  Discovery  in  Equity. — A  suit  for  dis- 
covery will  be  maintained  in  aid  of  another  cause  depend- 
ing in  a  court  of  equity  upon  a  cross-bill  filed  for  that  pur- 
pose by  the  defendant  therein ;  ^  ^  and  especially  in  aid  of 
proceedings  in  any  common-law  court  of  general  jurisdic- 
tion or  other  public  tribunal  of  the  same  country  which  is 
or  was  by  its  original  modes  of  procedure  unable  to  com- 
pel the  needed  disclosure.^  ^  It  has  been  said  that  the 
jurisdiction  in  aid  of  courts  of  law  is  confined  to  the 
superior  courts,  and  does  not  extend  to  inferior  courts 

§  196,  1  Millsaps  v.  Pfeiffer,  44  Miss.  805 ;  King  of  Spain  v.  HuUett, 
1  Ciark  &  F.  333;  Prioleau  v.  United  States,  L.  R.  2  Eq.  659;  United 
States  V.  Wagner,  L.  R.  2  Ch.  582,  L.  R.  3  Eq.  724;  Colombian  Govern- 
ment V.  Rothschild,  1  Sim.  94.  But  see  Heath  v,  Erie  R.  R.,  9  Blateh. 
316,  as  to  effect  of  recent  statutes.  It  seems,  also,  that  a  bill  for  discovery 
may  sometimes  lie  in  behalf  of  the  complaining  party  in  another  proceed- 
ing pending  in  a  court  of  equity:  Montague  v.  Dudman,  2  Ves.  Sr.  398, 
per  Lord  Hardwicke. 

§  196,  2  Jeremy's  Eq.  Jur.  268;  March  v.  Davidson,  9  Paige,  580;  Lane 
V.  Stebbins,  9  Paige,  622;  Atlantic  Ins.  Co.  v.  Lunar,  1  Sand.  Ch.  91; 
Kearney  v.  Jeffries,  48  Miss.  343;  Buckner  v.  Ferguson,  44  Miss.  677; 
Shotwell  V.  Smith,  20  N.  J.  Eq.  79. 

§  196,    (a)    The   text   is   quoted   in  §  196,    (b)    The   text   is   quoted   in 

Nixon   V.   Clear    Creek   Lumber   Co.,  Nixon   v.    Clear   Creek   Lumber   Co., 

150  Ala.  602,  9  L.  R.  A.  (N.  S.)  1255,  150  Ala.  602.  9  L.  R.  A.  (N.  S.)  1255, 

43  South.  805.  43  South.  805. 


§  196  EQUITY   JURISPRUDENCE.  276 

whose  jurisdiction  is  local  or  is  limited  as  to  the  subject- 
matter.3  It  is  well  settled  that  a  discovery  will  not  be 
granted  in  aid  of  a  controversy  before  arbitrators,  where 
the  submission  to  arbitration  was  the  voluntary  act  of  the 
parties ;  ^  but  the  reason  of  this  rule  fails,  and  a  discovery 
will  be  compelled  in  aid  of  a  compulsory  reference  to  arbi- 
trators or  referees  ordered  by  the  court  in  an  action.^ 
Discovery  has  sometimes  been  granted,  both  in  England 
and  in  this  country,  in  aid  of  a  controversy  pending  in  a 
tribunal  of  a  foreign  country.^  <^ 

§  196,  3  See  Jeremy's  Eq.  Jur.  268,  where  the  proposition  is  laid  down 
in  this  broad  manner  excepting  all  inferior  courts,  and  defining  them  as 
those  whose  jurisdiction  is  local,  although  otherwise  general,  and  those 
whose  jurisdiction  is  limited  in  any  manner,  giving  as  an  illustration  the 
ecclesiastical  courts.  The  proposition  in  this  broad  form  may  well  be 
doubted.  Adams,  in  his  treatise,  states  the  limitation  in  a  much  different 
manner.  He  says  that  discovery  may  be  enforced  in  aid  of  relief  "asked 
from  the  court  of  chancery,  or  from  another  public  tribunal,  in  this 
country,  which  is  itself  unable  to  enforce  discovery;  but  will  not  be  en- 
forced to  aid  a  proceeding  before  arbitrators,  or  before  an  inferior 
court."  He  adds  that  the  reason  why  it  is  refused  in  aid  of  proceedings 
in  the  ecclesiastical  courts  is  because  those  courts  have  themselves  ample 
power  to  compel  a  disclosure  of  facts.  I  think  it  clear  that  the  "inferior 
courts"  mentioned  by  Mr,  Adams  do  not  entirely  correspond  with  the  de- 
scription given  in  Jeremy.  It  is  very  certain  that  a  discovery  will  not 
be  granted  in  aid  of  suits  pending  in  courts  of  justices  of  the  peace,  and 
such  tribunals  which  are  in  every  way  inferior.  But  in  most  of  the  states 
the  courts  of  general  original  jurisdiction  as  to  persons  and  subject-matter 
are  limited  as  to  locality,  and  to  deny  the  "discovery"  in  aid  of  proceed- 
ings in  these  courts  because  they  are  "inferior"  would  virtually  be  to 
abolish  discovery. 

§  196,  4  Jeremy's  Eq.  Jur.  268 ;  Street  v.  Rigby,  6  Ves.  821.  The  rea- 
so]i  is,  that  such  arbitrators  are  not  a  regular  tribunal,  but  judges  chosen 
by  the  parties  outside  of  the  ordinary  course  and  mode  of  administering 
justice. 

§  196,  5  British  Empire  Ship.  Co.  v.  Somes,  3  Kay  &  J.  433. 

§  196,  6  MitcheU  v.  Smith,  1  Paige,  287;  Daubigny  v.  Davallon,  2  Anstr. 
467,  468;  Earl  of  Derby  v.  Duke  of  Athol,  1  Ves.  Sr.  202,  205;  Bent  v. 

§196,  (c)  Discovery  in  Aid  of  Div.  151,  the  question  whether  juris- 
Foreign  Suit. — In  the  case  of  Dreyfus  diction  existed  to  entertain  a  bill 
v.  Peruvian  Guano  Co.,  L.  E.  41  Ch.       for  discovery  only  in  aid  of  an  ac- 


277 


THE   AUXILIAKY   JURISDICTION. 


§197 


§  197.  The  cause  of  action  or  the  defense  which  can  be 
aided  by  a  suit  for  discovery  must  furthermore  be  wholly 
civil  in  its  nature.  The  auxiliary  jurisdiction  of  discovery 
will  only  be  exercised  on  behalf  of  a  contention,  action,  or 
defense  entirely  civil ;  and  it  will  therefore  withhold  its  aid 
from  criminal  prosecutions,  actions  penal  in  their  nature, 
and  controversies  involving  moral  turpitude,  or  arising 

Young,  9  Sim.  185;  that  a  suit  for  discoveiy  may  be  maintained  in  aid  of 
a  foreign  court  has  certainly  not  become  a  universal  rule.  Mr.  Adams 
strongly  doubts  its  propriety:  Adams's  Eq.,  marg.  p.  19.  The  recent 
decision  in  Reiner  v.  Marquis  of  Salisbuiy,  L.  R.  2  Ch,  Div.  378,  supports 
this  doubt. 


tion  pending  in  a  foreign  tribunal 
was  directly  passed  upon,  and  the 
jurisdiction  was  expressly  denied.  In 
examining  the  question,  Mr.  Justice 
Kay,  in  his  opinion,  showed  that  the 
notion  that  such  jurisdiction  existed 
was  directly  traceable  to  a  dictum 
of  Lord  Eedesdale  contained  in  his 
own  work  on  pleadings  (Mitford's 
Eq.  PI.,  3d  eel.,  151,  5th  ed.,  p.  221), 
which  purported  to  be  based  on  the 
authority  of  the  case  of  Crowe  v. 
Del  Rio,  erroneously  called  Crowe  v. 
Del  Ris,  decided  in  1769,  and  re- 
ferred to  in  the  subsequent  case  of 
Bent  V.  Young,  9  Sim.  180,  and  that 
such  dictum  was  without  support', 
and  was  founded  on  an  erroneous 
construction  of  the  case  of  Crowe  v. 
Del  Rio.  In  his  opinion,  Mr.  Justice 
Kay  expressly  refers  to  the  case  of 
Mitchell  V.  Smith,  1  Paige,  287,  and 
to  the  various  text-writers,  who  state 
that  the  jurisdiction  exists,  and 
ehows  conclusively  that  these  au- 
thorities based  their  opinions  on 
Lord  Redesdale's  dictum,  for  in  cit- 
ing the  case  of  Crowe  v.  Del  Rio 
they  have  each  copied  his  misspelling 
of  the  names  of  the  defendants.  The 
jurisdiction  was  upheld  in  Post  v. 
Toledo,  C.  &  St.  L.  R.  Co.,  144  Mass. 


341,  59  Am.  Eep.  86,  11  N.  E.  540. 
The  court  said:  "The  jurisdiction 
which  courts  of  equity  exercise  as 
ancillary  to  that  of  other  courts  is 
not,  on  either  principle  or  authority, 
confined  to  other  courts  of  the  same 
state.  A  receiver  has  been  appointed 
to  collect  or  preserve,  property  pend- 
ing litigation  in  a  foreign  court,  and 
an  injunction  has  been  granted 
against  transferring  property  until 
the  title  could  be  deterrtiined  in  a 
foreign  court.  In  the  present  case 
the  fact  that  all  the  officers  and  all 
the  books  of  the  corporation  are 
without  the  state  of  Ohio  makes  it, 
as  the  bill  alleges,  impossible  for 
the  plaintiff  to  obtain  discovery  in 
the  Ohio  courts,  and,  as  we  think 
the  plaintiff  is  entitled  to  discovery 
from  the  officers  of  the  corporation, 
we  are  of  opinion  that  a  bill  for 
discovery  may  be  maintained  here, 
where  the  officers  and  books  of  the 
corporation  are."  In  Van  Dyke  v. 
Van  Dyke  (N.  J.),  49  Atl.  1116,  it 
was  held  that  where  a  discovery  of 
facts  was  necessary  before  complain- 
ant could  accept  any  settlement  by 
administrators  in  the  orphans'  court 
of  another  state,  the  court  might  al- 
low  discovery. 


§  197  EQUITY   JURISPRUDENCE.  278 

from  acts  clearly  immoral,  even  though  brought  for  the 
purpose  of  recovering  pecuniary  compensation.  ^  *  It  was 
also  a  well-settled  rule  prior  to  the  modern  legislation, 
that  equity  would  not  interfere  in  aid  of  proceedings, 
otherwise  suitable  to  be  aided,  in  other  courts  which,  by 
their  constitution  or  established  modes  of  procedure,  were 
themselves  able  to  give  their  suitors  the  needed  relief  by 
compelling  the  disclosure  of  facts  or  the  production  of 

§  197,  1  Black  v.  Black,  26  N.  J.  Eq.  431  (no  discovery  granted  as  to 
commission  of  adultery) ;  Currier  v.  Concord  R.  R.,  48  N.  H.  321 ;  Glynn 
V.  Houston,  1  Keen,  329;  Earl  of  Suffolk  v.  Green,  1  Atk.  450;  East 
India  Co.  v.  Campbell,  1  Ves.  Sr.  246 ;  King  v.  Burr,  3  Mer.  693 ;  Claridge 
V.  Hoare,  14  Ves.  59,  65 ;  Montague  v.  Dudman,  2  Ves.  Sr.  398 ;  Litchfield 
V.  Bond,  6  Beav.  88;  Short  v.  Mercier,  3  Macn.  &  G.  205;  United  States 
V.  McRae,  L.  R.  3  Ch.  79;  United  States  v.  McRae,  L.  R.  4  Eq.  327; 
United  States  v.  Saline  Bank,  1  Pet.  100,  104;  Ocean  Ins.  Co.  v.  Fields, 

2  Story,  59;  Stewart  v.  Drasha,  4  McLean,  563;  Union  Bank  v.  Barker, 

3  Barb.  Ch.  358;  Skinner  v.  Judson,  8  Conn.  528,  21  Am.  Dec.  691; 
Northrup  v.  Hatch,  6  Conn.  361 ;  Poindexter  v.  Davis,  6  Gratt.  481 ;  as  to 
discovery  in  aid  of  suits  for  slander  and  libel,  see  Bailey  v.  Dean,  5  Barb. 
297;  Thorpe  v.  Macauley,  5  Madd.  229,  230;  Shackell  v.  Macauley,  2  Sim. 
&  St.  79,  2  Russ.  550,  note,  1  Bligh,  N.  S.,  96, 133, 134;  Wilmot  v.  Maccabe, 

4  Sim.  263;  Southall  v. ,  1  Younge,  308;  Hare  on  Discovery,  116,  117. 

§197,   (a)    Cited   and   similar   Ian-  worth,  2  Vern.  443;   Sloane  v.   Hat- 

guage   used   in   Keynolds   v.  Burgess  field,  Bunb.  18;  Taylor  v.  Crompton, 

Sulphite    Fibre    Co.,    71    N.    H.    332,  Bunb.    95;    Macclesfield   v.   Davis,   3 

341-345,   93  Am.   St.  Rep.   535,   544-  Ves.   &  B.   16;   Burrell   v.  Nicholson, 

549,   57  L.  E.  A.  949,  51   Atl.   1075.  3  Barn.  &  Adol.  649,  1  Mylne  &  K. 

In   this    case   it   is   held   that   a   dis-  680.     That  discovery  may  be  had  in 

covery    may    be    had    in    aid    of    an  aid  of  the  defense  to  a  suit  for  libel, 

action    at    law    for    a    personal    tort,  citing     Macauley     v.      Shackell,      1 

The  court  held  that  the  action,  be-  Bligh,  N.  S.,  96;  Wilmot  v.  Maccabe, 

ing   for   negligence   merely,   did   not  4   Sim.   263;   Thorpe   v.   Macauley,   5 

involve    moral    turpitude.     The    case  Mad.     218;     Marsh     v.     Davison,     9 

contains   an    excellent   discussion   of  Paige,  580,  584,  585,  586;  but  contra, 

the  right  to  discovery  in  such  a  case  that   discovery   cannot   be   sustained 

and    cites   many   of   the   authorities.  in  aid  of  an  action  for  a  mere  per- 

That  discovery  lies  in  aid  of  actions  Bonal   tort,  dicta  in   Glynn   v.  Hous- 

of   tort   relating   to   property   is   un-  ton,  1  Keen,  329;  Pye  v.  Butterfield, 

questioned,  citing  East  India  Co.  v.  5  Best  &  S.   829,  836;   and  Lyell  v. 

Evans,  1  Vern.  307;  Marsden  v.  Pan-  Kennedy,  8  App.  Cas.  217,  233;   and 

shall,    1    Vern.    407;     Hcathcote    v.  the  decision  in  Robinson  v.  Craig,  16 

Fleete,  2  Vern.  442;  Morse  v.  Buck-  Ala.   50. 


279  THfe    AUXILIARY    JURISDICTION".  §  197 

documents.^  As  to  the  effect  of  the  recent  statutes  con- 
ferring powers  upon  the  law  courts,  and  even  upon  courts 
of  equity,  which  they  did  not  originally  possess,  and  thus 
obviating  the  necessity  of  a  special  resort  to  equity,  there 
is,  as  has  already  been  shown,  a  direct  antagonism  among 
the  decided  cases;  some  holding  that  the  auxiliary  equi- 

§  197,  2  Jeremy's  Eq.  Jur.  269 ;  Dunn  v.  Coates,  1  Atk.  288 ;  Anony- 
mous, 2  Ves.  451;  Galston  v.  Hoyt,  1  Johns.  Ch.  547.  In  Leggett  v. 
Postley,  2  Paige,  599,  it  was  held  that  a  discovery  would  not  be  granted 
merely  to  guard  against  anticipated  perjury  on  the  trial  of  a  suit  at  law. 
In  Gelston  v.  Hoyt,  1  Johns.  Ch.  547,  Chancellor  Kent  lays  down  the  doc- 
trine in  a  very  sweeping  manner,  but  his  statement  of  the  rule  is  too 
broad,  and  must  not  be  accepted  without  much  limitation,  as  has  been 
shown  by  subsequent  authorities.  He  says :  "If  a  bill  seeks  discovery  in 
aid  of  the  jurisdiction  of  a  court  of  law,  it  ought  to  appear  that  such 
aid  is  required.  If  a  court  of  law  can  compel  the  discovery,  a  court  of 
equity  will  not  interfere.  And  the  facts  which  depend  upon  the  testimony 
of  witnesses  can  be  procured  or  proved  at  law,  because  courts  of  law  can 
compel  the  attendance  of  witnesses.  It  is  not  denied  in  this  case  but  that 
every  fact  material  to  the  defense  at  law  can  be  proved  by  ordinary  means 
at  law,  without  resorting  to  the  aid  of  this  court.  .  .  .  Unless,  therefore, 
the  bill  states  affirmatively  that  the  discoveiy  is  really  wanted  for  the 
defense  at  law,  and  also  shows  that  the  discovery  might  be  material  to  that 
defense,  it  does  not  appear  to  be  reasonable  and  just  that  the  suit  at  law 
should  be  delayed."  The  same  rule  was  stated  in  Sej'^motir  v.  Seymour, 
4  Johns.  Ch.  411,  and  Leggett  v.  Postley,  2  Paige,  599,  601.  But  the  rule 
as  thus  stated  is  confined  to  suits  for  discovery  and  relief,  and  does  not 
apply  to  suits  for  discoveiy  proper,  i.  e.,  the  pure  exercise  of  the  auxiliaiy 
jurisdiction.  "When  an  action  is  pending  at  law,  and  one  of  the  parties 
seeks  to  withdraw  the  entire  controversy  from  that  tribunal  into  a  court 
of  equity,  on  the  ground  that  a  discovery  is  needed,  and  files  a  bill  in 
equity  i^rajdng  for  a  discovery  and  for  final  relief,  and  an  injunction  upon 
the  action  at  law,  he  must  affirmatively  allege  in  his  bill  that  a  discovery 
is  necessary,  and  that  the  facts  which  he  seeks  to  obtain,  and  which  are 
material  to  his  contention,  cannot  be  proved  by  witnesses  or  by  the  ordi- 
naiy  testimony  in  the  court  of  law.  There  is  no  such  requisite  to  the 
maintaining  a  suit  for  discovery  proper  without  relief.  The  plaintiff  in 
the  suit  must,  of  course,  show  that  the  matters  Avhich  he  seeks  to  obtain 
are  material  to  his  contention,  but  not  that  the  suit  for  a  discovery  is  the 
only  means  of  obtaining  them.  In  other  words,  a  suit  for  a  discovery  is 
proper,  not  only  when  the  plaintiff  therein  is  without  other  means  of 
proof,  but  also  in  aid  of  his  other  evidence,  or  even  to  dispense  with  the 


§  197  EQUITY    JURISPKUDENCE.  280 

table  jurisdiction  remains  unaffected,  others  declaring  it 
abridged  or  abrogated. ^  ^  The  action  in  aid  of  which  the 
discovery  is  sought  may  be  pending;  but  this  is  not  neces- 
sary. It  is  sufficient  if  the  plaintiff  in  the  bill  for  a  dis- 
covery shows  that  he  has  a  right  to  maintain  or  defend 
an  action  in  another  court,  and  that  he  is  about  to  sue  or  is 
liable  to  be  sued  therein,  although  no  action  is  yet  com- 
menced; a  discovery  may  be  needed  to  determine  the 
proper  parties,  or  to  properly  frame  the  allegations  of  his 

necessity  of  other  evidence.  All  the  text-writers  are  agreed  upon  this 
view  of  the  object  and  use  of  "discovery"  proper:  Hare  on  Discovery, 
1,  110;  Wigram  on  Discovery,  4,  5,  25;  Story's  Eq.  PI.,  §  319,  note  3.  In 
Mitford's  Eq.  PI.  (Jeremy's  ed.)  307,  it  is  said:  "The  plaintiff  may  require 
this  discoverj'^,  either  because  he  cannot  prove  the  facts,  or  in  aid  of  proof 
or  to  avoid  expense."  In  Earl  of  Glengall  v.  Frazer,  2  Hare,  99,  105, 
Wigram,  V.  C,  said:  "The  plaintiff  is  entitled  to  a  discovery,  not  only 
in  respect  to  facts  which  he  cannot  otherwise  prove,  but  also  as  to  facts 
the  admission  of  which  will  relieve  him  from  the  necessity  of  adducing 
proof  from  other  sources."  The  decisions  are  to  the  same  effect :  Montague 
V.  Dudman,  2  Ves.  Sr.  398;  Brereton  v.  Gamul,  2  Atk.  241;  Peck  v. 
Ashley,  12  Met.  481 ;  Stacy  v.  Pearson,  3  Rich.  Eq.  152 ;  Chambers  v.  War- 
ren, 13  111.  321 ;  Williams  v.  Wann,  8  Blackf .  478.  In  March  v.  Davison, 
9  Paige,  580,  the  rule  laid  down  in  Leggett  v.  Postley,  2  Paige,  599,  and 
Gelston  v.  Hoyt,  1  Johns.  Ch.  547,  so  far  as  it  applied  to  suits  for  a  dis- 
covery alone,  was  expressly  overruled.  See  also  French  v.  First  Nat. 
Bank,  7  Ben.  488;  Shotwell  v.  Smith,  20  N.  J.  Eq.  79. 

§  197,  3  It  has  been  held  that  the  statutes  permitting  parties  to  be  ex- 
amined as  witnesses,  and  providing  summary  modes  for  compelling  th« 
production  of  documents,  have  not  affected  the  auxiliary  equitable  juris- 
diction for  discovei-y:  Lovell  v.  Galloway,  17  Beav.  1;  British  Emp.  Ship. 
Co.  V.  Somes,  3  Kay  &  J.  433 ;  Cannon  v.  McNab,  48  Ala.  99 ;  Shotwell  v. 
Smith,  20  N.  J.  Eq.  79.  But,  per  contra,  such  statutes  have  abolished  the 
jurisdiction:  Riopelle  v.  Doellner,  26  Mich.  102;  Heath  v.  Erie  R.  R.,  9 
BlaLchf.  31C;  also  a  statute  allowing  the  defendant  in  a  suit  in  equity  to 
examine  the  plaintiff  therein  upon  interrogatories  does  not  affect  the  juris- 
diction to  entertain  a  cross-bill  by  defendant  for  purpose  of  a  discovei-y: 
Millsaps  v.  Pf eiffer,  44  Miss.  805 ;  but,  per  contra,  see  Heath  v.  Erie  R.  R., 
9  Blatchf.  316. 

§197,  (b)  Cited  with  approval  to  Handley  v.  Hiffin,  84  Ala.  600,  4 
effect   that   jurisdiction   is  not   lost.       South.   725. 


281 


THE    AUXILIARY    JURISDICTION. 


§197 


pleading.^  «     But  after  a  judgment  or  verdict  in  the  action 
at  law,  it  is  too  late  to  bring  a  suit  for  discovery  alone. ^ 

§  197,  4  Kearney  v.  Jeffries,"  48  Miss.  343 ;  Buckner  v.  Ferguson,  44 
Miss.  677;  Hoppock  v.  United,  etc.,  R.  R.,  27  N.  J.  Eq.  280;  Baxter  v. 
Farmer,  7  Ired.  Eq.  239;  Turner  v.  Dickerson,  9  N.  J,  Eq.  140;  Moodalay 
V.  Morton,  1  Brown  Ch.  469,  2  Dick.  652;  Angell  v.  Angell,  1  Sim.  &  St. 
83 ;  City  of  London  v.  Levy,  8  Ves.  404. 

§  197,  5  Green  v.  Massie,  21  Gratt.  356 ;  McColIum  v.  Prewitt,  37  Ala. 
573 ;  Duncan  v.  Lyon,  3  Johns.  Ch.  355,  402,  8  Am.  Dec.  513 ;  Cowman  v. 
Kingsland,  4  Edw.  Ch.  627;  Foltz  v.  Pourie,  2  Desaus.  Eq.  40;  Faulkner's 
Adm'r  v.  Harwood,  6  Rand.  125.  If  equity  has  concurrent  jurisdiction, 
a  bill  may  be  filed  for  relief  and  discovery  as  an  incident  thereto,  and  to 
enjoin  the  action  at  law  even  after  judgment. 


§  197,  (c)  Discovery  in  Aid  of 
Future  Action. — The  text  is  cited  to 
the  efTect  that  a  discovery  may  be 
needed  to  determine  the  proper  par- 
ties in  Hurricane  Tel.  Co.  v.  Mohler, 
51  W.  Va.  1,  41  S.  E.  421.  So  "when 
a  plaintiff  has  a  cause  of  action 
against  persons  who  are  defined 
either  by  statute,  or  by  their  rela- 
tions to  property  or  a  business  by 
the  management  of  which  the  plain- 
tiff has  suffered  injury,  and  the 
names  and  residences  of  these  per- 
sons are  unlvnown  to  him,  it  is  not 
clear  that  there  may  not  be  such  a 
state  of  facts  that  a  court  ought  to 
compel  a  discovery  of  the  names  and 
residences  of  these  persons  from 
their  agents  in  charge  of  the  prop- 
erty or  business;  and  the  decisions 
recognize  that  this  may  sometimes 
be  done."  Post  v.  Toledo,  C.  & 
St.  L.  K.  Co.,  144  Mass.  341,  59  Am. 
Rep.  86,  11  N.  E.  540.  In  this  case 
a  discovery  of  the  names  and  ad- 
dresses of  the  stockholders  of  a 
corporation  was  allowed.  So  held, 
also,  in  Clark  v.  Rhode  Island  Loco- 
motive Works,  24  R.  I.  307,  53  Atl. 
47.  Recent  cases  to  the  same  effect 
are  Brown  v.  McDonald,  133  Fed. 
897,    68    L.    R.    A.    (N.    S.)    462,    67 


C.  C.  A.  59,  reversing  130  Fed.  964; 
Kurtz  V.  Brown,  152  Fed.  372,  11 
Ann.  Cas.  576,  81  C.  C.  A.  498,  af- 
firming 134  Fed.  663;  Brown  v. 
Palmer,  157  Fed.  797;  Brown  v. 
Magee,  146  Fed.  765  (receiver  of 
corporation  can  bring  bill  for  dis- 
covery against  a  stockbroker  to  dis- 
cover who  is  the  real  owner  of  stock 
held  in  his  name  as  agent) ;  Huey  v. 
Brown,  171  Fed.  641,  96  C.  C,  A.  443 
(same). 

However,  a  bill  of  discovery  can- 
not be  used  for  mere  "fishing"  pur- 
poses. Thus,  in  George  v.  Solomon, 
71  Miss.  168,  14  South.  531,  plaintiff 
alleged  that  he  paid  rent  to  two  dif- 
ferent persons  whom  he  made  de- 
fendants and  asked  a  discovery  in 
order  that  it  appear  which  should 
refund.  Discovery  was  refused,  the 
court  saying:  "The  bill  is  a  pure 
and  simple  fishing  bill,  and  com- 
plainant angles  in  the  broadest 
water.  If  relief,  under  these  cir- 
cumstances, can  be  afforded  in 
equity,  we  see  no  reason  why  the 
owner  of  lost  or  stolen  property 
might  not  implead  in  one  suit  the 
residents  of  a  city  or  county  upon 
the  averment  that  some  one  of  them 
— which  one,  the  complainant  is  not 


§  198  EQUITY    JURISPBUDENCE.  282 

§  198.  II.  The  Parties,  Their  Situation  and  Relations 
to  Each  Other,  in  Order  That  a  Discovery  may  be  Granted 
— The  Plaintiff. — Either  the  plaintiff  or  the  defendant  in 
the  pending  or  anticipated  action  at  law  may  file  a  bill  for 
a  discovery.  Since  by  the  rules  of  equity  pleading,  inde- 
pendent of  modern  statutes,  only  the  complainant  can  com- 
pel a  disclosure  on  oath  from  his  adversary,  if  the  de- 
fendant in  an  equity  suit  needs  a  discovery  he  must  file  a 
cross-bill,  and  thus  become  a  plaintiff  for  that  purpose.^ 
As  the  first  requisite,  the  plaintiff  in  the  equity  suit  for  a 

§  198,  1  Millsap  v.  Pfeiffer,  44  Miss.  805;  Bogert  v.  Bogert,  2  Edw.  Ch. 
399.  To  aid  the  defendant  in  obtaining  a  discovery,  and  the  production 
of  documents  upon  his  cross-bill,  the  court  may  stay  the  proceedings  of 
the  plaintiff  on  his  original  bill  until  he  has  fully  answered  the  cross-bill, 
made  complete  discovery,  or  produced  the  needed  documents:  Princess  of 
Wales  V.  Lord  Liverpool,  1  Swanst.  114;  Taylor  v.  Heming,  4  Beav.  235; 
Bate  v.  Bate,  7  Beav.  528;  Milligan  v.  Mitchell,  6  Sim.  186;  Penfold  v. 
Nunn,  5  Sim.  405;  United  States  v.  Wagner,  L.  R.  2  Ch.  582;  Talmage  v. 
Pell,  9  Paige,  410;  White  v.  Buloid,  2  Paige,  164. 

It  should  be  remembered,  in  applying  these  settled  rules,  that  by  the 
present  practice  in  England  and  in  many  of  our  states,  the  defendant 
in  an  equity  suit  no  longer  files  a  cross-bill,  and  the  defendant  (or  plain- 
tiff) in  a  suit  at  law  no  longer  files  a  "bill  of  discovery";  in  either  case 
the  defendant  may  set  up  any  ground  for  affirmative  relief  in  a  "counter- 
claim," and  may  obtain  a  discovery  by  means  of  "interrogatories"  sub- 
mitted in  the  action  itself.  The  settled  doctrines  of  equity  apply  to  this 
new  mode  of  procedure :  Saunders  v.  Jones,  L.  R.  7  Ch.  Div.  435,  443,  per 
Bacon,  V.  C;  Cashin  v.  Craddock,  L.  R.  2  Ch.  Div.  140;  Anderson  v.  Bank 
of  British  Columbia,  L.  R.  2  Ch.  Div.  644;  Hoffman  v.  Postill,  L.  R.  4  Ch. 
673. 

informed — bas    converted    his    prop-  auxiliary   to    tlie   maintenance   of    a 

erty  and  is  liable  for  its  value."   See,  suit  not  yet  brought,  see  Parrott  v. 

also,  First  Nat.  Bank  v.  Phillips,  71  Chestertown  Nat.  Bank,  88  Md.  515, 

Miss.  51,  15  South.  29.     A  discovery  41  Atl.  1067;  Wolf  v.  Wolf's  Ex'r,  2 

sought     on     suspicion,     surmise     or  Har.    &    G.    382,    18    Am.    Dec.    313; 

vague  guesses  is  a  "fishing  bill,"  and  Heinz   v.   German   Fire   Ins.   Co..   95 

will  be  dismissed;  General  Film  Co.  Md.  760,  51  Atl.  951;  Post  v.  Toledo, 

V.     Sampliner,     232     Fed.     95,     146  C.  &  St.  L.  R.  Co.,  144  Mass.  341,  59 

C.  C.  A.  287.  Am.  Rep.  86,  11  N.  E.  540;  Reynolds 

As  holding  in  accordance  with  the  v.    Burgess    Sulphite    Fibre    Co.',    71 

text,  that  a  discovery  may  be  had  as  N.  H.  332,  341,  93  Am.  St.  Rep.  535, 


283  TnE    AUXITJARY    JURISDICTION.  §  198 

discovery  must  show  tliat  he  has  a  title  or  interest  in  the 
subject-matter  to  which  the  proposed  discovery  relates, 
such  an  interest  as  he  can  maintain  or  defend  in  a  proceed- 
ing pending  or  to  be  brought  in  another  tribunal,  and  must 
thus  show  that  he  is  entitled  to  the  discovery.  A  mere 
stranger  is  never  allowed  to  maintain  a  suit  for  discovery 
concerning  a  subject-matter  in  which  he  has  no  interest 
enforceable  by  a  judicial  proceeding,  or  concerning  the 
title  or  estate  of  a  third  person. 2  a  In,  addition  to  exhibit- 
ing a  title  or  interest  in  the  subject-matter,  the  allegations 
of  the  plaintiff's  bill  must  show  that  a  discovery  would  not 

§  198,  2  Jeremy's  Eq.  Jur.  25S ;  Baxter  v.  Farmer,  7  Ired.  Eq.  239 ; 
Turner  v.  Dickerson,  9  N.  J.  Eq.  140 ;  Carter  v.  Jordan,  15  Ga.  76 ;  Jones 
V.  Bradshaw,  16  Gratt.  355;  Continental  Life  Ins.  Co.  v.  Webb,  54  Ala. 
688;  Brown  v.  Dudbridge,  2  Brown  Ch.  321,  322;  Brownsword  v.  Edwards, 
2  Ves.  Sr.  243,  247. 

On  this  ground  the  heir  at  law  cannot,  during  the  life  of  his  ancestor, 
maintain  a  suit  for  discoverj'^  concerning  the  estate,  since  he  has  no  present 
interest  in  it :  Buden  v.  Dore,  2  Ves.  445 ;  and  the  heir  at  law  cannot  com- 
pel a  production  of  deeds  relating  to  the  estate  in  possession  of  the 
devisee,  unless  he  is  an  heir  in  tail ;  but  the  devisee  is  entitled  to  such  pro- 
duction from  the  heir  at  law:  Shaftesbury  v.  Arrowsmith,  4  Ves.  71; 
Cooper's  Eq.  PL,  chap.  1,  §  4,  pp.  58,  59 ;  chap.  3,  §  3,  pp.  197,  198.  As 
a  general  rule,  the  plaintiff  is  confined  to  facts  connected  with  or  relating 
to  his  own  title  or  estate,  and  cannot  investigate  the  title  or  estate  of  the 
defendant  in  the  discovery  suit.  This  rule,  however,  has  sometimes  been 
relaxed  when  necessary  for  the  ends  of  justice,  and  the  following  cases  are 
examples  both  of  the  rule  and  its  application :  Brown  v.  Wales,  L.  R.  15 
Eq.  142;  Girdelstone  v.  North  British,  etc.,  Co.,  L.  R.  11  Eq.  197;  Com'rs, 

.544,  57  L.  R.  A.  949,  51  Atl.  1075  judicial  proceeding  must. be  pending 
(citing  the  text,  and  Marsden  v.  or  contemplated  before  a  bill  of 
Panshall,  1  Vern.  437;  Bovill  v.  discovery  will  lie":  State  v.  Eliza- 
Moore,  2  Coop.  Ch.  Cas.  56;  Heath-  bethtown  Water  Co.,  83  N.  J.  Eq. 
cote  v.  Fleete,  2  Vern.  442;  Morse  216,  89  Atl.  1039.  See,  also,  in  sup- 
V.  Buckworth,  2  Vern.  443;  Russell  port  of  the  text,  American  Security 
V.  Cowley,  1  Webst.  Pat.  Cas.  457;  &  Trust  Co.  v.  Brooks,  225  Mass.  500, 
Patent  Type  Founding  Co.  v.  Walter,  114  N.  E.  732. 

.Tohns.    727).     But    "there    must    be  §  198,  (a)  See,  also,  Camp  v.  Ward, 

some  legal  right,  the  enforcement  of  69  Vt.  286,  60  Am.  St.  Rep.  929,  37 

which  is  sought  and  in  aid  of  which  Atl.  747. 
a  discovery  is  necessary,  and  some 


§  198  EQUITY    JUEISPBUDENCB.  284 

be  useless.  The  plaintiff  in  the  discovery  suit  must  show 
by  his  averments,  at  least  in  a  prima  facie  manner,  that 
if  he  is  the  plaintiff  in  the  action  at  law  he  has  a  good 
cause  of  action,  and  if  he  is  the  defendant,  he  has  a  good 
defense  thereto.  Wliile  it  is  not  necessary  that  his  right 
of  action  or  of  defense  at  law  should  be  beyond  dispute, 
still,  if  the  bill  should  negative  the  existence  of  any  such 
right,  the  court  of  equity  would  of  course  refuse  a  dis- 
covery which  would  then  be  useless.^  ^  If  the  result  of  the 
controversy  at  law  is  doubtful,  even  when  the  defendant 
in  the  suit  for  a  discovery  has  denied  the  plaintiff's  title, 

etc.  V.  Glasse,  L.  R.  15  Eq.  302;  Kettlewell  v.  Barstow,  L.  R.  7  Ch.  6S6; 
Slack  V.  Black,  109  Mass.  496 ;  Haskell  v.  Haskell,  3  Cush.  540 ;  Sackvill 
V.  Ayleworth,  1  Vern.  105;  Dursley  v.  Fitzhardinge,  6  Ves.  260;  Allan  v. 
Allan,  15  Ves.  131;  Attorney-General  v.  Duplessis,  Parker,  144,  155-164; 
5  Brown  Pari.  C.  91;  Glegg  v.  Legh,  4  Madd.  193,  208;  Wigram  on  Dis- 
covery, 21,  22;  Jeremy's  Eq.  Jur.  262,  263. 

§  198,  3  Jeremy's  Eq.  Jur.  261 ;  Cardale  v.  Watkins,  5  Madd.  18 ;  Wallis 
V.  Duke  of  Portland,  3  Ves.  494 ;  Lord  Kensington  v.  Mansell,  13  Ves.  240 ; 
Angell  V.  Draper,  1  Vern.  399 ;  Maeauley  v.  Shackell,  1  Bligh,  N.  S.,  120 ; 
Thomas  v.  Tyler,  3  Younge  &  C.  255;  Metier  v.  Metier,  19  N.  J.  Eq.  457; 
Slack  V.  Black,  109  Mass.  496. 

§  198,  (b)  "Unless    the    facts    set  charge     of     accident,     surprise,     or 

forth    in    the    bill,    admitting    their  fraud:    Seotten    v.    Eosenblum,    231 

truth,  would  enable  the   plaintiff  to  Fed.   357.     Of  course,  where  diseov- 

maintain  an  action,  he  has  no   title  ery    is    merely    incidental    to    other 

to    the     assistance    of    a    court    of  equitable   relief,   the   bill   cannot   be 

equity    to    obtain    evidence    of    the  maintained  when  a  right  to  relief  is 

truth   of   the   case."     Hurricane   Tel.  not  made  out.     Everson  v.  Equitable 

Co.  V.  Mohler,  51  W.  Va.  1,  41  S.  E.  Life  Assur.  Co.,  68  Fed.  258  (account 

421,  citing  this   section  of  the  text.  and  discovery) ;  American  Ore  Mach. 

See,    also,    Tillinghast    v.    Westcott,  Co.  v.  Atlas  Cement  Co.,  110  Fed.  53 

Slade  &  Balcom  Co.,  30  R.  I.  334,  75  (account  and   discovery) ;   Welles   v. 

Atl.  306;   General  Film  Co.  v.  Sam-  Rhodes,   59    Conn.   498,    22    Atl.    28S 

pliner,  232  Fed.  95,  146  C.  C.  A.  287  (bill  to  quiet  title);  Courter  v.  Cres- 

(bill  in  aid  of  defense  must  make  it  cent  Sewing  Mach.  Co.,  60  N.  J.  Eq, 

clear    that    the    defense    exists,    and  413,   45   Atl,   609    (account   and   dis- 

that   the   proceeding   is   not   a   mere  covery).     See,  also,  Grieb  v.  Equita- 

"fishing  excursion").     So,   the  party  ble  Life  Assur.  Society,  189  Fed.  49S 

against    whom    judgment    has    been  (discovery  and  accounting) ;  State  v, 

rendered  in  the  action  at  law  cannot  Western  &  A.  R.  Co.,  136  Ga.  619,  71 

have    discovery,    unless    there    is    a  S.  E,  1055;  State  v,  Denton,  229  Mo. 


285  THE   AUXILIABY   JURISDICTION.  §  199 

or  has  set  up  matter  which  if  true  would  operate  as  a  com- 
plete defense,  the  court  of  equity  will,  in  general,  gi-ant 
the  diseovery,  and  leave  the  issue  to  be  tried  and  finally 
determined  by  the  court  of  law.* 

§  199.  The  Defendant. — I  proceed  to  consider,  in  the 
next  place,  the  requisites  concerning  the  defendant  in  a 
suit  for  a  discovery.  No  discovery  can  be  compelled  from 
an  incompetent  defendant;  as,  for  example,  an  infant,  or  a 
lunatic  without  committee.^  The  general  rule  is  well  set- 
tled, and  admits  of  only  one  or  two  special  exceptions, 
which  are  necessary  to  prevent  a  failure  of  justice,  that 
no  person  can  properly  be  made  a  defendant  in  the  suit  for 
a  discovery,  or  compelled  as  such  to  disclose  facts  within 
his  knowledge,  unless  he  has  an  interest  in  the  subject- 
matter  of  the  controversy  in  aid  of  which  the  discovery  is 
asked. 2     Thus,  as  an  illustration  of  this  rule,  arbitrators 

§  198,  4  March  v.  Davison,  9  Paige,  580;  Lane  v.  Stebbins,  9  Paige,  622; 
Deas  V.  Harvie,  2  Barb.  Ch.  448;  Bailey  v.  Dean,  5  Barb.  297;  Peck  v. 
Ashley,  12  Met.  478;  Thomas  v.  Tyler,  3  Younge  &  C.  255,  261,  262;  Hare 
on  Discovery,  43-46.  A  suit  for  discovery  alone  may  thus  sometimes  be 
maintained  where  a  bill  for  discovery  and  relief  would  be  overruled;  but 
not  after  a  judgm.ent  or  verdict  in  an  action  at  law:  McCoUum  v.  Prewitt, 
37  Ala.  573;  Treadwell  v.  Brown,  44  N.  H.  551;  Primmer  v.  Patten,  32 
111.  528;  Chichester  v.  Marquis  of  Donegal,  L.  R.  4  Ch.  416;  Kettlewell  v. 
Barstow,  L.  R.  7  Ch.  686;  Thompson  v.  Dunn,  L.  R.  5  Ch.  573;  Smith  v. 
Duke  of  Beaufort,  1  Phill.  Ch.  209. 

§  199,  1  Or  the  attorney-general,  when  sued  on  behalf  of  the  crown : 
Micklethwaite  v.  Atkinson,  1  Coll,  C.  C.  173,  Adams's  Eq.  8.  The  joinder, 
as  defendants  in  the  same  suit  for  a  discovery,  of  defendants  in  separate 
actions  at  law  is  irregular:  Broadbent  v.  State,  7  Md.  416;  McDougald  v. 
Maddox,  17  Ga.  52. 

§199,  2  Jeremy's  Eq,  Jur.  259;  Brownsword  v.  Edwards,  2  Ves.  Sr. 
243;  Neuman  v.  Godfrey,  2  Brown  Ch.  332;  Plummer  v.  May,  1  Ves.  Sr. 
426;  Dineley  v.  Dineley,  2  Atk.  394;  Finch  v.  Finch,  2  Ves.  Sr.  491; 
Fenton  v.  Hughes,  7  Ves.  287.  Thus  it  has  been  held  that  in  a  suit  by  his 
creditors  against  a  bankrupt  and  his  assignees,  he  cannot  be  compelled  to 

187,  138  Am.  St.  Rep,  417,  129  S.  W.  62  Atl.  782  (same) ;  New  York  Trust 
709  (discovery  and  accounting);  Elk  Co.  v.  Langcliffe  Coal  Co.,  227  Pa. 
Brewing  Co.  ▼.  Neubert,  213  Pa.  171,       Gil,  76  Atl.  729   (same). 


§  199  EQUITY    JURISPBUDSNCE.  286 

cannot,  in  general,  be  joined  as  defendants  to  a  bill  of  dis- 
covery and  compelled  to  disclose  the  grounds  of  their 
award,3  but  if  they  are  charged  with  actual  misconduct, 
^  fraud,  or  corruption,  they  are  obliged  to  answer  with  re- 
spect to  such  allegations. 4  As  another  illustration  of  the 
rule,  mere  witnesses  cannot  be  joined  as  defendants  and 
obliged  to  answer;  nor  can  a  mere  agent  be  made  a  partj 
for  purpose  of  obtaining  a  discovery  from  him.^  «•  This 
application  of  the  rule  is  not  without  exception.  Where 
an  agent,  as,  for  example,  an  attorney,  has  assisted  his 
principal  in  the  accomplishment  of  actual  fraud,  he  may  be 

make  discoveiy  because  he  has  parted  with  his  interest :  De  Golls  v.  Ward, 
3  P.  Wms.  311,  note ;  Griffin  v.  Archer,  2  Anstr.  478,  2  Ves.  643 ;  Whit- 
worth  V.  Davis,  1  Ves.  &  B.  545.  The  exceptions  to  this  rule  belong  much 
more  frequently  to  suits  for  relief,  in  which  discovery  is  asked  as  an  in- 
cident, than  to  suits  for  a  discovery  proper  without  relief.  It  was  decided 
in  In  re  Barned's  Bank,  L.  R.  2  Ch.  350,  that  an  official  "liquidator,"  in 
winding  up  corporations,  under  the  statute,  is  in  all  respects  in  the  same 
position  as  any  other  defendant,  and  is  not  deemed  an  ofiBcer  of  the  court : 
i.  e.,  if  joined  as  a  defendant  in  a  suit  against  the  corporation,  all  the 
rules  as  to  discovery,  production  of  documents,  privilege,  etc.,  apply  to 
him. 

§199,  3  Stewart  v.  East  India  Co.,  2  Vem.  380;  Anonymous,  3  Atk. 
644;  Tittenson  v.  Peat,  3  Atk.  529. 

§  199,  4  Jeremy's  Eq.  Jur.  260;  Ives  v.  Medcalf,  1  Atk.  63;  Lingood  v. 
Croucher,  2  Atk.  395;  Lonsdale  v.  Littledale,  2  Ves.  451;  Dummer  v. 
Corp'n  of  Chippenham,  14  Ves.  252 ;  Chicot  v.  Lequesne,  2  Ves.  Sr.  315, 
418;  Lindsley  v.  James,  3  Cold.  477. 

§199,  5  Ballin  v.  Ferst,  55  Ga.  546;  and  see  cases  cited  in  the  three 
preceding  notes. 

§  199,  (a)  Cited  to  the  effect  ttat  debtor's  debtor;  Post  v.  Toledo,  C.  & 

bill     for     discovery     does     not     lie  St.  L.  R.  Co.,  144  Mass.  341,  59  Am. 

against  mere  witnesses  in  Hanley  v.  Rep.  86,  11  N.  E.  540.     The  text  is 

Wetraore,   15   R.  I.   386,   6  Atl.   777;  further      supported      by      American 

Hurricane    Tel.    Co.    v.    Mohler,    51  Security  &  Trust  Co.  v.  Brooks,  225 

W.  Va.  1,  41  S.  E.  421.     See,  also,  Mass.  500,  114  N.  E.  732  (wUl  not  lie 

Detroit  Copper  &  Brass  Rolling  Mills  against   a  witness,  nor   against   one 

Co.    V.    Ledwidge,    162    111.    305,    44  who   is  not  a  party   to  the   contem- 

N.  E.  751,  where  it  was  held  that  a  plated  litigation,  with  the  eiception 

creditor's    bill    for    discovery    alone  mentioned  in  the  text), 
cannot    be    maintained    against    the 


287  THE   AUXILIABY   JURISDICTION.  §  199 

made  a  co-defendant  and  compelled  to  disclose  tlie  facts. ^  ^ 
The  most  important  exception  is  in  case  of  suits  against 
corporations.  Where  it  is  desired  to  obtain  discovery  from 
a  corporation  in  a  bill  filed  against  it  for  that  purpose,  it 
is  firmly  settled  by  the  authority  of  decided  cases  that  a 
secretary  or  some  other  officer  may  and  must  be  joined  as 
a  co-defendant,  from  whom  the  discovery  may  be  obtained 
by  his  answer  under  oath.  This  exception  is  based  wholly 
upon  considerations  of  expediency,  since  a  corporation 
cannot  make  an  answer  on  oath,  nor  be  liable  for  per- 
jury."^  c    Yov  the  same  reason,  the  rule  has  been  extended 

§199,  SBallin  v.  Ferst,  55  Ga.  546;  Bowles  v.  Stewart,  1  Schoales  & 
L.  227;  Bennet  v.  Vade,  2  Atk.  324;  Fenwick  v.  Reed,  1  Mer.  114;  Plum- 
mer  v.  May,  1  Ves.  Sr.  426 ;  Brace  v,  Harrington,  2  Atk.  235 ;  Dummer  v. 
Corp'n  of  Chippenham,  14  Ves.  252,  254;  Jeremy's  Eq.  Jur.  260;  Gart- 
land  V.  Nunn,  11  Ark.  721. 

§199,  7  Jeremy's  Eq.  Jur.  260;  Wych  v.  Meal,  3  P.  Wms.  311,  312, 
per  Talbot,  L.  C.  (the  leading  ease) ;  French  v.  First  Nat.  Bk.,  7  Ben.  488; 
Fenton  v.  Hughes,  7  Ves.  288-291,  per  Eldon,  L.  C;  Dummer  v.  Corp'n 
of  Chippenham,  14  Ves.  252;  Glasseott  v.  Copper  Min.  Co.,  11  Sim.  305; 
Ex  parte  The  Contract  Co.,  L.  R.  2  Ch.  350;  Gooch's  Case,  L.  R.  7  Ch. 
207;  Ayers  v.  Wright,  8  Ired.  Eq.  229;  Yates  v.  Monroe,  13  lU.  212;  Many 
V.  Beekman  Iron  Co.,  9  Paige,  188. 

§199,   (b)  This  paragraph  is  cited,  South.  251;  King  v.  Livingston  Mfg. 

generally,  to  the  point  that  bills  of  Co.,  180  Ala.  118,  60  South.  143.    See, 

discovery  are  not  confined  to  parties  also,  Roanoke  St.  Ry.  Co.  v.  Hicks, 

to   the   action   at   law,   in   Griesa   v.  32  S.  E.  295,  96  Va.  510;  Munson  v. 

Mutual  Life  Ins.   Co.,   169  Fed.   509,  German-American  Fire  Ins.  Co.   (W. 

94  C.  C.  A.  635,  reversing  156  Fed.  Va.),  47   S.  E'.   160.     In   Colgate   v. 

398;  but  see  Terrell  v.  Southern  Ry.  Compagnie  Francaise  du  Telegraphe, 

Co.,  164  Ala.  423,  20  Ann.  Cas.  901,  23    Fed.    82,    the    court    said:    "Un- 

51  South.  254.  doubtedly,   a   corporation   cannot   be 

§  199,   (c)   Suits   Against   Corpora-  compelled  to  answer  under  oath  to  a 

tions;  Parties  Defendant. — The  text  bill  in  equity.     It  answers  only  un- 

is  cited  to  the  eiJect  that  an  officer  der  the  seal  of  the  corporation.     It 

should  be  made  a  party  in  Virginia  is  for  this  reason  the  practice  has 

&  A.  Min.  &  Mfg.   Co.  v.  Hale,  93  obtained   of   making  the   officers   of 

Ala.    542,    9    South.    256;    Nixon    v.  the    corporation    parties   to    the   bill 

Clear    Creek    Lumber  Co.,   150   Ala.  and   requiring   them   to   answer   the 

602,    9    L.    R,    A,    (N.    S.)    1255,    43  interrogatories.     This,  however,  does 

South.    805;    Gulf    Compress    Co.    v.  not    excuse    a   corporation   from    an- 

Jones    Cotton    Co.,    157    Ala.    32,    47  swering  .  .  .  Although   no   officer   or 


§  200  EQUITY    JURISPRUDENCB.  288 

by  modern  cases  to  suits  by  and  cross-bills  against  nations 
or  states  which  are  not  monarchical,  such  as  the  United 
States  of  America  and  other  republics. ^ 

§  200.  A  Bona  Fide  Purchaser. — Where  the  defendant 
is  a  bona  fide  purchaser  of  the  property  which  is  the 
subject-matter  of  the  controversy,  or  which  his  adversary 
is  endeavoring  to  reach,  for  a  valuable  consideration  actu- 
ally paid,  and  without  notice  of  the  plaintiff's  claim,  he  is 
protected,  not  only  from  relief  concerning  the  property 
in  a  suit  brought  for  that  purpose,  but  he  is  also  freed 
from  the  duty  of  making  discovery,  which  might  otherwise 
have  rested  upon  him,  of  any  facts  and  circumstances 
tending  to  aid  the  plaintiff  in  his  contention  in  a  suit  of 
discovery  alone.  To  constitute  him  a  purchaser  in  good 
faith  for  a  valuable  consideration,  so  as  to  come  within  the 
operation  of  this  equitable  doctrine,  he  must  have  actually 
paid  the  purchase  price  which  forms  the  valuable  consid- 

§  199,  8  United  States  v.  Wagner,  L.  R.  2  Ch.  582;  L.  R.  3  Eq.  724; 
Prioleau  v.  United  States  and  Andrew  Johnson,  L.  R.  2  Eq.  6-59.  See  also 
Republic  of  Costa  Rica  v.  Erlanger,  L.  R.  1  Ch.  Div.  171,  L.  R.  19  Eq. 
33;  Republic  of  Peru  v.  Weguelin,  L.  R.  20  Eq.  140.  In  King  of  Spain 
V.  Hullett,  1  Clark  &  F.  333,  the  house  of  lords  held  that  when  a  foreign 
monarch  sues  in  his  own  name,  he  thereby  submits  himself  to  the  jurisdic- 
tion and  ordinary  practice  of  the  court ;  and  if  the  defendant  files  a  cross- 
bill for  a  discovery,  the  king  must  make  his  answer  and  swear  to  it  per- 
sonally, as  any  other  plaintiff  would  be  required  to  do.  This  and  other 
cases  also  hold  that  when  a  foreign  monarch  sues,  the  court  regards  him 
as  suing  personally,  and  not  in  any  representative  or  official  character.  It 
is  otherwise  when  a  nation  or  state  sues  in  its  corporate  capacity.  See, 
also  King  of  the  Sicilies  v.  Wilcox,  1  Sim.,  N.  S.,  301 ;  Colombian  Govern- 
ment V.  Rothschild,  1  Sim.  94. 

agent  is  made  a  party  to  the  biH,  it  the    course    of    justice    may    be    in- 

is  still  the  duty  of  the  corporation  to  ferred   which   will  justify   the   court 

cause     diligent    examination    to    be  in  charging  it  with  the  costs  of  the 

made,  and  give  in  its  answer  all  the  suit."     In  Continental  Nat.  Bank  v. 

information    derived   from   such    ex-  Heilman,  66  Fed.  184,  also,  it  is  held 

amination;    and    if   it   alleges    igno-  that   the    officers   are    not   necessary 

ranee   without  excuse,   a   disposition  parties,  although  it  is  customary  to 

on    its   part   to   defeat   and   obstruct  make   them   parties. 


289  THE    AUXILIARY    JURISDICTION.  §  200 

eration.i  ^  The  protection  of  bona  fide  purchasers  for  a 
valuable  consideration  without  notice  of  opposing  claims 
is  a  principle  running  through  the  entire  equity  jurispru- 
dence, and  is  one  of  its  most  righteous  and  efficient  doc- 
trines in  promoting  justice.  Although  the  general  rules 
are  well  settled  that  as  among  mere  equities  to  the  same 
property,  the  one  which  is  prior  in  time  is  also  prior  in 
right,  and  as  between  two  holders  of  different  equities  to 
the  same  property,  the  one  who  has  also  obtained  a  legal 
title  has  thereby  acquired  the  precedence,  and  that  a  pur- 
chaser without  any  show  or  semblance  of  title  cannot  claim 
protection  as  a  bona  fide  purchaser  from  the  equitable 
principle  above  mentioned,^  still  it  is  not  absolutely  essen- 
tial that  a  purchaser  in  good  faith  for  a  valuable  consid- 
eration and  without  notice,  in  order  to  come  within  the 
meaning  and  operation  of  the  doctrine,  and  to  be  protected 
against  discovery  in  aid  of  his  adversary,  or  against  re- 
lief, should  always  be  a  purchaser  of  a  legal  title.     The 

§  200,  1  Jeremy's  Eq.  Jur.  263,  264;  Stanhope  v.  Earl  Verney,  2  Eden, 
81 ;  Maundrell  v.  Maundrell,  10  Ves.  246,  259,  260,  270 ;  Jones  v.  Powles,  3 
Mylne  &  K.  581,  596-598;  McNeH  v.  Magee,  5  Mason,  269,  270;  Wood  v. 
Mann,  1  Sum.  506;  Flagg  v.  Mann,  2  Sum.  487;  Willoughby  v.  Willoughby, 
1  Term  Rep.  763,  767,  per  Lord  Hardwicke.  See  the  whole  subject  of 
bona  fide  purchasers,  notice,  and  priorities  discussed  in  the  notes  to  Bassett 
V.  Nosworthy,  Cas.  t.  Finch,  102,  and  Le  Neve  v.  Le  Neve,  Amb.  436,  3 
Atk.  646,  1  Ves.  Sr.  64,  in  2  Lead.  Cas.  Eq.,  4th  Am.  ed.,  1,  4r-108,  109, 
117-227.  The  system  of  registering  conveyances,  mortgages,  judgments, 
and  other  encumbrances,  universal  in  the  United  States,  has  rendei'ed  the 
equitable  doctrines  concerning  "notice,"  "priorities,"  and  "bona  fide  pur- 
chasers" of  less  frequent  application  in  this  countiy  than  in  England;  but 
the  same  doctrines  form  a  part  of  our  equity  jurisprudence,  and  are  con- 
stantly invoked  and  applied  by  the  courts  whenever  circumstances  require 
or  permit. 

§  200,  2  Payne  v.  Compton,  2  Younge  &  C.  457;  Fitzsimmons  v.  Ogden, 
7  Cranch,  2;  Vattier  v.  Hinde,  7  Pet.  252,  271;  Boone  v.  Chiles,  10  Pet. 
177;  and  see  notes  to  Bassett  v,  Nosworthy  and  Le  Neve  v.  Le  Neve,  2 
Lead.  Cas.  Eq.  1-108,  109-227. 

§200,  (a)   As  to  the  necessity  of       der  to  become  a  bova  fide  purchaser, 
payment  of  the  purchase  price  in  or-       see  post,  §§  750,  751. 
1—19 


§  200  EQUITY    JURISPRUDENCE.  290 

principle  upon  which  equity  proceeds  is,  that  "  if  a  defend- 
ant has  in  conscience  a  right  equal  to  that  claimed  by  the 
person  filing  a  bill  against  him,  although  he  is  not  clothed 
with  a  perfect  legal  title,  this  circumstance,  in  his  position 
as  defendant,  renders  it  improper  for  a  court  of  equity  to 
compel  him  to  make  any  discovery  which  may  hazard  his 
title.  "3  It  is  also  settled,  as  a  corollary  of  the  principle, 
that  a  purchaser  of  property  with  notice  from  a  bona  fide 
purchaser  for  a  valuable  consideration,  and  without  notice, 
acquires  the  rights  of  and  is  entitled  to  the  same  protec- 
tion as  his  grantor.4  These  rules  of  protection  to  the 
innocent  purchaser  are,  of  course,  recognized  and  acted 

§200,  3  Mitford's  Eq.  PI.  (Jeremy's  ed.)  199.  The  substance  of  this 
doctrine  is,  that  courts  of  equity  will  not  take  any  step  against  such  an 
innocent  purchaser,  but  will  suffer  him  to  take  every  advantage  which 
the  law  gives  him;  for  there  is  nothing  which  can,  in  the  language  of 
equity,  attach  itself  upon  or  work  on  his  conscience,  in  favor  of  an  ad- 
verse claimant :  Story's  Eq.  Jur.,  §  1503.  See,  on  this  general  subject, 
Payne  v.  Compton,  2  Younge  &  C.  457,  461 ;  Bechinall  v.  Arnold,  1  Vern. 
355;  Dursley  v.  Fitzhardinge,  6  Ves.  263;  Jerrard  v.  Saunders,  2  Ves. 
458,  per  Loughborough,  L.  C. ;  Senhouse  v.  Earl,  2  Ves.  Sr.  450 ;  Wortley 
V.  Birkhead,  2  Ves.  573,  574;  Langton  v.  Horton,  1  Hare,  547,  563; 
Skeeles  v.  Shearley,  8  Sim.  153,  3  Mylne  &  C.  112 ;  Doe  ex  dem.  Coleman 
V.  Britain,  2  Barn.  &  Aid.  93 ;  Wood  v.  Mann,  1  Sum.  507-509. 

§200,  4Varick  v.  Briggs,  6  Paige,  323,  329;  Jackson  v.  MeChesney, 
7  Cow.  360,  17  Am.  Dec.  521.  And  see  notes  to  Bassett  v.  Nosworthy, 
and  Le  Neve  v.  Le  Neve,  2  Lead.  Cas,  Eq.  1,  109.  In  fact,  the  rights 
once  acquired  by  the  bona  fide  purchaser  for  a  valuable  consideration,  and 
without  notice,  are  transferred  to  his  heirs,  devisees,  and  other  purely 
voluntary  assignees.  It  has  been  held  in  England  that  a  judgment  cred- 
itor, who  has  taken  the  land  of  his  debtor  by  an  elegit,  is  not  to  be  re- 
garded as  a  bona  fide  purchaser  within  the  meaning  of  the  rule ;  and  there- 
fore such  a  judgment  creditor,  taking  the  land  of  his  debtor  by  an  elegit, 
which  was  subject  to  a  prior  equitable  mortgage,  of  which  he  had  no  notice 
at  the  time  of  executing  the  elegit,  was  decreed  to  hold  the  land  only  in 
subordination  to  the  lien  of  the  equitable  mortgage:  Whitworth  v.  Gaugain, 
3  Hare,  416.  The  same  has  been  held  in  this  country  with  respect  to  a 
judgment  creditor  who  obtains  title  to  his  debtor's  land  by  levy  thereon 
under  an  execution :  Hart  v.  Farmers'  and  Mech.  Bank,  33  Vt.  252 ;  Abell 
V.  Howe,  43  Vt.  403;  but  see  Danbury  v.  Robinson,  14  N.  J.  Eq.  213,  82 
Am.  Dec.  244. 


291 


THE   AUXILIARY   JURISDICTION. 


§200 


upon  by  the  courts  in  administering  relief;  and  although 
they  can  no  longer,  in  many  states,  be  applied  in  suits  for 
a  discovery  to  excuse  him  from  answering,  they  should 
still,  on  principle,  furnish  the  proper  limitations  to  the 
examination  of  such  a  purchaser  as  a  witness  by  his  adver- 
sary, when  he  is  a  party  to  a  litigation  involving  his  title, 
where  such  examination  has  taken  the^ place  of  the  equi- 
table suit  for  a  discovery.^ 


§  200,  (b)  See,  also,  §  764  et  seq.  In 
Ind,  Coope  &  Co.  v.  Emmerson,  L.  R. 
12  App.  C.  300,  the  effect  of  the 
judicature  act  of  1873  upon  the  doc- 
trine that  a  bona  fide  purchaser  was 
protected  in  a  suit  for  discovery 
alone  from  making  discovery  was 
discussed.  This  was  a  suit  brought 
in  the  Chancery  Division  of  the 
High  Court  of  Justice,  by  the  holder 
of  the  legal  title  to  lands,  to  recover 
their  possession,  and  in  it  the  plain- 
tiff claimed  the  discovery  of  certain 
papers  and  documents  which  she  al- 
leged were  material  to  her  title.  To 
the  prayer  for  discovery,  the  defend- 
ants set  up  that  they  were  bona  fide 
purchasers.  It  will  be  noticed  that 
the  plaintiff's  case,  so  far  as  it 
sought  to  recover  the  possession  of 
the  land,  was  one  that,  prior  to  the 
judicature  act,  would  have  been  en- 
forced in  a  legal  action  of  eject- 
ment, and  that  the  discovery  would 
have  beeu  obtained  in  a  bill  brought 
for  that  purpose,  to  which  the  de- 
fense of  bona  fide  purchaser  would 
have  been  a  complete  answer.  The 
defendants  contended  that  the  same 
protection  was  afforded  them  in  the 
present  action,  and  that  the  con- 
solidation of  the  legal  and  equitable 
actions  in  the  one  action  authorized 
by  the  judicature  act  had  made  no 
change  in  the  pre-existing  equitable 
rules  as  to  discovery  in  cases  of  bon<i 
fide  purchaser.     In  disposing  of  this 


contention,  Lord  Chancellor  Sel- 
borne  said:  "The  first  observation  to 
be  made  is,  that  the  court  of  ehan- 
dery,  when  it  allowed  a  plea  of  pur- 
chase for  valuable  consideration 
without  notice  to  a  bill  for  discovery 
only,  allowed  it,  not  to  particular 
discovery  (as,  e.  g.,  of  certain  deeds 
and  documents),  but  to  the  whole, 
not  on  the  ground  that  certain 
things  ought  not  to  be  inquired  into, 
but  because  the  court  ought  not,  as 
against  such  a  purchaser,  to  give 
any  assistance  whatever  to  a  plain- 
tiff suing  upon  a  legal  title-  in  an- 
other jurisdiction.  And  upon  the 
same  ground,  a  like  plea  would  have 
been  allowed  to  a  suit  asking  for 
more  than  discovery  (e.  g.,  for  an 
injunction  to  restrain  the  defendant 
at  law  from  setting  up  outstanding 
terms),  when  the  object  of  the  suit 
was  still  to  obtain  from  the  court  of 
chancery  assistance  to  the  suit  of 
the  plaintiff  suing  upon  a  legal  title 
in  another  jurisdiction.  The  defense 
was,  in  effect  'no  equity,'  which  is 
a  different  thing  from  an  'equitable 
defense.'  It  was  thought  inequi- 
table, generally,  that  a  man  should 
defeat  a  legal  title  by  keeping  back 
facts  in  his  own  knowledge,  or  by 
setting  up  outstanding  terms;  it  was 
thought  not  inequitable  that  a  pur- 
chaser for  value  without  notice 
should  use  any  such  tabula  in  nau- 
fragio  as  best  he  could.     But  in  the 


§201 


EQUITY    JURISPRUDENCE. 


292 


§  201.  III.  The  Nature,  Subject-matter,  and  Objects  of 
the  Discovery  Itself;  that  is,  the  Matters  Concerning 
Which  the  Plaintiff  may  Inquire  and  Compel  a  Discovery, 
and  the  Defendant  must  Answer  and  Make  Discovery.^ — 

The  fundamental  rule  on  this  subject  is,  that  the  plain- 
tiff's right  to  a  discovery  does  not  extend  to  all  facts 
which  may  be  material  to  the  issue,  but  is  confined  to  facts 
which  are  material  to  his  own  title  or  cause  of  action;  it 
does  not  enable  him  to  pry  into  the  defendant's  case,  or 


present  case  there  is  no  suit  in  any 
other  jurisdiction  J  the  High  Court  of 
Justice  is  asked,  and  is  competently 
asked,  to  exercise  a  principal  and 
not  an  auxiliary  jurisdiction,  and  to 
give  effect  to  the  legal  title  which 
the  plaintiff  alleges  to  be  in  herself. 
If  a  like  suit  had  formerly  been 
brought  in  the  court  of  chancery  it 
would  have  been  demurrable,  not 
because  there  was  an  equitable  de- 
fense, but  because  the  title  was 
legal,  and  the  plaintiff  stated  no 
equity.  To  abolish  that  division  of 
jurisdictions  was  the  very  object  of 
the  judicature  act.  ...  In  the  class 
of  cases  referred  to,  the  separation 
and  division  of  jurisdictions  between 
the  courts  of  equity  and  the  courts 
of  common  law  was  the  real  and 
only  ground  on  which  such  a  defense 
was  admitted.  As  against  an  inno- 
cent purchaser  sued  at  law,  the 
court  of  chancery  (having  no  juris- 
diction itself  to  try  the  title)  found 
no  equity  requiring  it  to  give  assist- 
ance to  a  proceeding  brought  else- 
where for  that  purpose.  But  it  is 
impossible,  without  departing  from 
that  ground,  to  make  the  same  de- 
fense available  against  discovery 
(otherwise  proper)  in  a  suit  in  which 
it  is  not  available  against  the  relief, 
and  in  which  the  High  Court  has 
proper  jurisdiction  to  try.  and  must 


try,  and  determine  the  question  of 
title,  and  accordingly  we  find  that 
there  is  no  instance  of  any  suit  com- 
petently brought  in  the  court  of 
chancery  for  relief,  as  well  as  dis- 
covery in  which  the  defense  of  pur- 
chaser for  value  without  notice  has 
been  held  available  against  discov- 
ery incident  to  the  relief,  and  not 
against  the  relief  itself  also.  That 
defense  was  never  admitted  as  an 
objection  to  particular  discovery;  it 
went  to  all  or  none.  And  in  those 
cases  in  which  the  court  of  chan- 
cery had  concurrent  jurisdiction 
with  the  common-law  courts  upon 
legal  titles,  it  was  not  available 
against  either  discovery  or  relief." 
It  was  accordingly  held,  affirming 
the  judgment  of  the  Court  of  Ap- 
peal (L.  R.  33  Ch.  Div.  323),  that 
the  defendants  were  obliged  to  make 
discovery.  That  a  similar  conclu- 
sion would  be  reached  in  all  those 
American  states  where  there  has 
been  a  union  of  legal  and  equitable 
jurisdictions  would  seem  necessarily 
to   follow. 

§  201,  (a)  Cited  with  approval  in 
Kelley  v.  Boetteher,  85  Fed.  55,  29 
C.  C.  A,  14;  Smythe  v.  New  Orleans 
C.  &  B.  Co.,  34  Fed.  825,  affirmed, 
141  U.  S.  656,  12  Sup.  Ct.  113;  Wat- 
kins  V.  Cope,  84  N.  J.  L.  143,  86  Atl. 
545. 


293  THE    AUXILIAEY    JURISDICTION.  §  201 

find  out  the  evidence  by  which  that  case  will  be  supported. 
The  plaintiff  is  entitled  to  a  disclosure  of  the  defendant's 
title,  and  to  know  what  his  defense  is,  but  not  to  a  state- 
ment of  the  evidence  upon  which  the  defendant  relies  to 
establish  it.i  ^    This  rule,  however,  must  be  understood 

§  201,  1  Jeremy's  Eq.  Jur.  262,  263;  Wigram  on  Discovery,  21,  22;  see 
quotation  ante,  §  195,  note ;  Hoppock  v.  United,  etc.,  R.  R.,  27  N.  J.  Eq. 
286;  French  v.  Rainey,  2  Tenn.  Ch.  641;  Richardson  v.  Mattison,  5  Biss. 
31;  Kearney  v.  Jeffries,  48  Miss.  343;  Heath  v.  Erie  R.  R.,  9  Blatchf.  316; 
Sackvill  V.  Ayleworth,  1  Vern.  105;  Dursley  v.  Fitzhardinge,  6  Ves.  260; 
Allan  V.  Allan,  15  Ves.  131;  Janson  v.  Solarte,  2  Younge  &  C.  127;  Attor- 
ney-General V.  Corp'n  of  London,  2  Macn.  &  G.  247;  Llewellyn  v.  Badely, 
1  Hare,  527;  Lowndes  v.  Davies,  6  Sim.  468;  Glasseott  v.  Copper  Miners' 
Co.,  11  Sim.  305;  Bellwood  v.  Wetherell,  1  Younge  &  C.  211-218;  Cullison 
V.  Bossom,  1  Md.  Ch.  95 ;  Phillips  v.  Prevost,  4  Johns.  Ch.  205 ;  Cuyler  v. 
Bogert,  3  Paige,  186;  Bank  of  Utica  v.  Mersereau,  7  Paige,  517;  King  v. 
Ray,  11  Paige,  235;  Brooks  v.  Byam,  1  Story,  296-301;  Langdon  v.  God- 
dard,  3  Story,  13;  Haskell  v.  Haskell,  3  Cush.  542;  Bethell  v.  Casson,  1 
Hem.  &  M.  806.  The  following  cases  also  illustrate  the  rule,  in  some  of 
which  the  discovery  was  held  to  be  material  to  plaintiff's  case,  and  proper; 
in  others  not  to  be  proper,  because  relating  solely  to  defendant's  defense: 

§  201,  (b)  Facts  Must  be  Material  ground  that  the  "plaintiff  in  eject- 
to  Plaintiff's  Title. — See,  also,  Ben-  ment  must  rely  on  the  strength  of 
bow  V.  Low,  L.  R.  16  Ch.  Div.  93  his  own  title";  but  in  the  House  of 
(not  entitled  to  statement  of  defend-  Lords  it  was  shown  that  the  practice 
ant's  evidence);  Bidder  v.  Bridges,  was  otherwise;  citing  Craw  v.  Tyrell, 
L.  R.  29  Ch.  Div.  34.  A  plea  that  2  Madd.  397;  Wright  v.  Plumptre, 
the  documents  which  the  bill  seeks  3  Madd.  481;  Pennington  v.  Berchy, 
to  discover  do  not  relate  to  the  2  Sim.  &  St.  282;  Drake  v.  Drake, 
plaintiff's  ease  must  be  taken  as  3  Hare,  523;  Bennett  v.  Glossop,  3 
true,  unless  the  court  can  see  from  Hare,  578;  Brown  v.  Wales,  L.  R. 
the  nature  of  the  case  or  of  the  15  Eq.  147;  Butterworth  v.  Bailey, 
documents  that  the  party  has  misun-  15  Ves.   358. 

derstood  the  effect  of  the  documents;  To    the   effect   that    a   bill   cannot 

Roberts  v.  Oppenheim,  L.  R.  26  Ch.  be  maintained  for  what  does  not  ap- 

Div.     484.     In     Lyell     v.     Kennedy,  pertain  to  and  is  not  necessary  for 

L.  R.  8  App.  Cas.  217,  reversing  20  the    title    of    the     plaintiff,   but   ap- 

Ch.   Div.  484,  the   Court  of  Appeal  pertains  to  the  title  of  the  defend- 

(Brett,  L.  J.,  and  Jessel,  M.  R.)  had  ant,    see    Norfolk    &    W.    R.    Co.    v. 

held  that  in  an  action  of  ejectment  Postal  Tel.  Cable  Co.,  88  Va.  932,  14 

it  was  the  settled  practice  that  the  S.    E.    689;    Sunset    Telephone   &    T. 

plaintiff    could    not    have    discovery  Co.  v.  City  of  Eureka,  122  Fed.  961; 

even    as    to   his     own     title,    on    the  Genera]   Film   Co.  v.   Sampliner,   232 


§201 


EQUITY    JURISPRUDENCE. 


294 


with  the  limitation  that  the  plaintiff  may  compel  the  dis- 
covery of  all  facts  material  to  his  own  cause  of  action,  even 
though  the  defendant's  evidence  may  thereby  be  inciden- 

Owen  V.  Wynn,  L.  R.  9  Ch.  Div.  29;  Minet  v.  Morgan,  L.  R.  8  Ch.  361, 
363,  L.  R.  11  Eq.  234;  In  re  Leigh's  Estate,  L.  R.  6  Ch.  Div.  256;  Great 
Western,  etc.,  Co.  v.  Tucker,  L.  R.  9  Ch.  376 ;  Kettlewell  v.  Barstow,  L.  R. 
7  Ch.  686  (defendant  was  excused  from  producing  a  pedigree  which  he 
swore  positively  related  solely  to  his  own  title,  and  showed  nothing  con- 
cerning the  plaintiff's  title  by  descent,  which  was  in  issue)  ;  Thompson  v. 
Dunn,  L.  R.  5  Ch.  573;  Chichester  v.  Marquis  of  Donegal,  L.  R.  5  Ch. 
497;  Wilson  v.  Thornbury,  L.  R.  17  Eq.  517;  Murray  v.  Clayton,  L.  R.  15 
Eq.  115  (in  a  suit  for  infringement  on  a  patent  right,  after  a  decree  in 


Fed.  95,  146  C.  C.  A.  287;  Kinny  v. 
Eice,  238  Fed.  444  (cannot  have  dis- 
covery for  the  purpose  of  ascertain- 
ing the  names  of  witnesses  by  whom 
defendtint  expects  to  prove  his 
case);  Franklin  Township  v.  Crane, 
80  N.  J.  Eq.  509,  43  L.  E.  A.  (N.  S.) 
604,  85  Atl.  408.  As  holding  that 
plaintiff  cannot  seek  discovery  of 
matters  beyond  his  own  title,  see, 
also,  Kelley  v.  Boettcher,  85  Fed. 
55,  29  C.  C.  A.  14.  Accordingly  it 
has  been  held  that  a  plaintiff  :s  not 
entitled  to  an  inspection  of  the 
deeds  upon  which  defendant  bases 
his  right.  Eyder  v.  Bateman,  93 
Fed.  31.  That  plaintiff  is  entitled 
to  a  discovery  of  defendant's  title, 
see  Stone  v.  Marshall  Oil  Co.,  188 
Pa.  St.  614,  41  Atl.  748,  1119.  A  bill 
mav  be  maintained  for  the  discovery 
of  a  will  under  which  plaintiff 
claims.  Hanneman  v.  Eichter,  62 
N.  J.  Eq.  365,  50  Atl.  904.  Or  of 
choses  in  action  in  defendant's  pos- 
session the  nature  of  which  plaintiff 
docs  rot  know.  Smith  v.  Smith's 
Adm'r,  92  Va.  696,  24  S.  E.  280. 
Courts  of  equity  in  patent  cases 
sometimes  grant  an  inspection  of 
alleged  infringing  devices  as  inci- 
dental to  ordinary  discovery.  Col- 
gate   V.     Compagnie    Francaise     du 


Telegraphe,  23  Fed.  82.  In  Eey- 
nolds  V.  Burgess  Sulphite  Fibre  Co., 
71  N.  H.  332,  93  Am.  St.  Eep.  535, 
57  L.  R.  A.  949,  51  Atl.  1075,  it  was 
held  that  a  plaintiff  may  have  dis- 
covery of  an  article  of  personal 
property  so  that  an  expert  may  ex- 
amine it  before  trial.  The  action  at 
law  was  for  negligence.  In  Plaster 
V.  Throne-Franklin  Shoe  Co.,  123 
Ala.  360,  26  South.  225,  discovery  of 
assets  was  allowed  as  incidental  to 
a  creditor's  bill.  In  Clark  v.  Equi- 
table Life  Assur.  Soc,  76  Miss.  22, 
23  South.  453,  it  was  allowed  to 
determine  the  profits  of  a  mutual 
life  insurance  company;  as  incidental 
to  an  account.  In  Hartman  v. 
Evans,  38  W.  Va.  669,  18  S.  E.  810, 
it  was  allowed  to  determine  the  true 
character  of  a  loan,  and  to  show 
usury. 

"The  plaintiff  may  restrict  his 
prayer  for  discovery  to  any  matter 
01  part  of  the  evir'cnce  to  support 
his  action  that  he  may  choose.  It 
would  be  absurd  to  suppose  that,  if 
he  files  a  bill  for  discovery,  he  must 
call  upon  the  defendant  for  all  the 
evidence  necessary  to  support  the 
plaintiff's  action  at  law."  Hurri- 
cane Tel.  Co.  V.  Mohler,  51  W.  Va. 
1.  41  S.  E.  421. 


295  THE   AUXILIARY    JURISDICTION.  §  201 

tally  disclosed, <^  as,  for  example,  where  the  establishment 
of  the  plaintiff's  title  or  cause  of  action  involves  the  proof 
of  fraud;  and  the  defendant,  besides  discovering  what  the 
case  is  on  which  he  relies,  can  be  compelled  to  disclose  all 
facts  which  would,  by  way  of  evidence,  tend  to  impeach  or 
destroy  it,  unless  otherwise  privileged,  since  such  facts  are 
material  evidence  for  his  adversary,  but  is  not  bound  to 
disclose  any  evidence  by  which  he  intends  to  or  may  sup- 
port his  case,  for  such  evidence  cannot  be  material  to  the 
plaintiff .2  ©    As  a  direct  inference  of  this  general  rule,  all 

plaintiff's  favor,  establishing  plaintiff's  right,  and  enjoining  the  defend- 
ant, plaintiff  is  entitled  to  a  discovery  of  all  the  i^atented  articles  sold  by 
defendant,  and  of  the  names  and  addresses  of  their  purchasers) ;®  Brown 
V.  Wales,  L.  R.  15  Eq.  142  (in  a  controversy  concerning  title  to  lands 
embraced  in  a  certain  conveyance,  matters  identifying  the  parcels  of  land 
in  dispute  are  part  of  plaintiff's  title,  as  well  as  matters  showing  the 
devolution  of  the  estate);  Wier  v.  Tucker,  L.  R.  14  Eq.  25;  Girdlestone 
V.  North  Brit.,  etc.,  Ins.  Co.,  L.  R.  11  Eq.  197;  Bovill  v.  Smith,  I..  R.  2 
Eq.  459 ;  Dixon  v.  Eraser,  L.  R.  2  Eq.  497 ;  Saunders  v.  Jones,  7  Ch,  Div. 
435,  443. 

§  201,  2  Stainton  v.  Chadwick,  3  Macn.  &  G.  575 ;  Young  v.  Colt,  2 
Blatchf.  373.  In  Attorney-General  v.  Corporation  of  London,  2  Macn. 
&  G.  247,  256,  257,  13  Beav.  313,  Lord  Cottenham  states  in  a  very  clear 
and  full  manner  the  exact  extent  and  limits  of  the  plaintiff's  right  of  dis- 
covery with  respect  to  matter  relating  to  the  defendant's  defense  and  title, 
and  his  opinion  has  been  regarded  accurate.  The  following  more  recent 
decisions  will  further  illustrate  this  rule:  In  Hoffman  v.  Postill,  L.  R.  4 
Ch.  673,  it  was  held  that  although  the  plaintiff  cannot  have  a  discovery  of 
the  evidence  in  support  of  defendant's  case,  yet  when  the  defendant  files 
interrogatories,  he  may  ask  any  questions  tending  to  defeat  the  plaintiff's 
cause  of  action.  While  this  decision  does  not  claim  that  discovei'y  by 
defendant  is  governed  by  any  different  principle,  it  plainly  shows  that 
more  freedom  is  allowed  to  the  defendant  than  to  the  plaintiff  in  investi- 
gating his  adversary's  case.  To  exactly  the  same  effect  is  the  decision  in 
Commissioner,  etc.  v.  Glasse,  L.  R.  15  Eq.  302.     In  Republic  of  Costa 

§201,   (c)   To  the  same  effect,  see  444;    Laeoss    v.    Town    of    Lebanon 

Saccharin    Corporation   v.   Chemicals  (N.  H.),  101  Atl.  364. 

&  Drugs   Co.,   (1900)    2   Ch.  556.  §201,   (e)   Quoted  in  Edison  Elec- 

§201,   (d)    See  Dock  v.   Dock,  180  trie    Light    Co.    v.    U.    S.    Electric 

Pa.  St.  14,  57  Am.  St.  Rep.  617,  36  Light  Co.,  45  Fed.  55,  58. 
Atl.  411;   Kinney   v.   Rice,   238   Fed. 


§  201  EQUITY    JURISPRUDENCE.  296 

the  facts  which  the  plaintiff  seeks  to  discover  must  be 
material;  the  defendant  is  never  compelled  to  disclose  mat- 
ters which  are  immaterial  as  evidence  to  support  the  plain- 
tiff's contention;  he  is  never  obliged  to  answer  vexatious 
or  impertinent  questions,  asked  from  curiosity  or  malice.^  ^ 

Rica  V,  Elanger,  L.  R.  19  Eq.  33,  44,  45,  per  Malins,  V.  C,  while  it  was 
admitted  that,  in  general,  matters  simply  injurious  to  defendant's  case 
could  not  be  discovered,  and  that  a  mortgagee  or  hona  fide  purchaser  for 
value,  in  a  suit  against  him  concerning  the  land,  cannot  be  compelled  to 
disclose  the  title  deeds  of  the  estate  under  which  he  holds,  this  general 
rule  is  subject  to  an  exception;  viz.,  when  a  prima  facie  case  is  stated 
impeaching  the  validity  of  these  very  deeds,  on  the  ground  of  fraud,  or 
some  other  ground  which  would  establish  the  plaintiff's  right,  their  dis- 
covery by  the  defendant  will  be  compelled;  citing,  as  illustrations  of  this 
doctrine,  Beckford  v.  Wildman,  16  Ves.  438;  Balch  v.  Symes,  Turn.  &  R. 
87;  Bassford  v.  Blakesley,  6  Beav.  131,  133;  Kennedy  v.  Green,  6  Sim. 
6  (case  of  a  hona  fide  purchaser,  etc.) ;  Latimer  v.  Neate,  11  Bligh,  112, 
4  Clark  &  F.  570 ;  FoUett  v.  Jefferyes,  1  Sim.,  N.  S.,  1 ;  Freeman  v.  But- 
ler, 33  Beav.  289;  Crisp  v.  Platel,  8  Beav.  62.  And  on  the  rule  that 
defendant  must  disclose  matters  aiding  the  plaintiff's  cause  of  action,  even 
though  they  may  also  affect  his  own  title  or  defense,  see  Brown  v.  Wales, 
L.  R.  15  Eq.  142;  Smith  v.  Duke  of  Beaufort,  1  Hare,  507;  Earp  v.  Lloyd, 
3  Kay  &  J.  549;  Lowndes  v.  Davies,  6  Sim.  468. 

§  201,  3  Finch  v.  Finch,  2  Ves.  Sr.  492 ;  Richards  v.  Jackson,  18  Ves. 
472;  Janson  v.  Solarte,  2  Younge  &  C.  127;  Montague  v.  Dudman,  2  Ves. 
Sr.  399;  Gelston  v.  Hoyt,  1  Johns.  Ch.  548,  549;  Lindsley  v.  James,  3 
Cold.  477;  Wier  v.  Tucker,  L.  R.  14  Eq.  25;  Minet  v.  Morgan,  L.  R.  8 
Ch.  361;  Republic  of  Costa  Rica  v.  Erlanger,  L.  R.  19  Eq.  33;  as,  for 
example,  in  suits  against  vendors  or  manufacturers  for  infringing  upon 

§  201,  (f )  Equity  will  not  compel  ters  as  to  which  a  discovery  is 
discovery  of  irrelevant  matters.  sought  are  material  to  the  proving 
Alexander  v.  Mortgage  Co.,  47  Fed.  of  his  action  at  law,  but  he  must 
131.  In  Gorman  v.  Bannigan,  22  state  his  case  in  such  a  manner  that 
K.  I.  22,  46  Atl.  38,  the  plaintiff  the  court  will  be  able  to  see  how  such 
sought  a  discovery  of  the  value  of  matters  may  be  material  on  the  trial 
an  estate  in  aid  of  an  action  at  law  thereof."  That  an  interrogatory  in- 
fer legal  services.  It  was  held  that  tended  merely  to  obtain  the  names 
the  evidence  sought  was  immaterial  of  witnesses,  especially  witnesses 
to  the  issue  and  that  the  bill  could  whom  the  other  party  expects  to 
not  be  maintained.  In  this  case  the  call,  is  bad,  see  Watkins  v.  Cope,  84 
court  said:  "Moreover,  it  is  not  suffi-  N.  J.  L.  143,  86  Atl.  545,  citing  the 
cient,  in  a  bill  of  discovery,  for  the  text.  The  whereabouts  of  some  of 
complainant  to  allege  that  the  mat-  the  defendants  is  not  material  to  as- 


297  THE   AUXILIAKY   JUKISDICTIOIT.  §  202 

§  202.  As  a  general  proposition,  the  discovery,  in  order 
to  be  granted,  must  be  in  aid  of  some  object  which  a  court 
of  equity  can  regard  with  approval,  or  at  least  without  dis- 
approval,— some  object  which  is  not  opposed  to  good 
morals  or  to  the  principles  of  public  policy  embodied  in 
the  law.i  This  doctrine  is  the  foundation  of  several  par- 
ticular rules  regulating  the  practice  of  discovery.  The 
first  of  these  particular  applications  of  the  doctrine  is,  that 
a  defendant  in  the  discovery  suit,  or  in  a  suit  for  relief  as 
well  as  discovery,  is  never  compelled  to  disclose  facts 
which  would  tend  to  criminate  himself,  or  to  expose  him 
to  criminal  punishment  or  prosecution,  or  to  pains,  penal- 
ties, fines,  or  forfeitures.  He  may  refuse  an  answer,  not 
only  to  the  main,  directly  criminating  facts,  but  to  every 
incidental  fact  which  might  form  a  link  in  the  chain  of  evi- 
dence establishing  his  liability  to  punishment,  penalty,  or 
forfeiture.2  a    This  restriction  upon  the  right  to  a  dis- 

plaintiff's  trademark,  the  names  of  defendant's  customers  who  have  bought 
the  article  need  not  be  disclosed:  Carver  v.  Pinto  Leite,  L.  R.  7  Ch.  90; 
Moore  v.  Craven,  L.  R.  7  Ch.  94,  note;  but  see  Murray  v.  Clayton,  L.  R. 
15  Eq.  115;^  and  see  Jeremy's  Eq.  Jur.  265.  This  special  rule  should 
not  be  understood  as  requiring  that  the  discovery  itself  must  be  material 
in  the  sense  that  the  plaintiff  has  no  other  way  of  obtaining  the  evidence; 
it  has  been  shown  that  a  suit  for  discovery  may  be  maintained  solely  on 
the  ground  of  convenience,  and  need  not  be  rested  on  any  necessity.  For 
further  illustrations  of  the  text,  see  cases  cited  in  last  note. 

§  202,  1  Jeremy's  Eq.  Jur.  268 ;  King  v.  Burr,  3  Mer.  693 ;  Cousins  v. 
Smith,  13  Ves.  542 ;  Rejah  v.  East  India  Co.,  35  Eng.  L.  &  Eq.  283. 

§  202,  2  Jeremy's  Eq.  Jur.  265-268 ;  Currier  v.  Concord,  etc.,  R.  R., 
48  N.  H.  321;  Black  v.  Black,  26  N.  J.  Eq.  431;  East  India  Co.  v.  Camp- 
bell, 1  Ves.  Sr.  246;  Claridge  v.  Hoare,  14  Ves.  59,  65;  Fisher  v.  Owen, 
L.  R.  8  Ch.  Div.  646;  Christie  v.  Christie,  L.  R.  8  Ch.  499;  Lichfield  v. 

sist  plaintiff  in  establishing  his  case;  §201,  (e)  Also,  Saccharin  Corpora- 

the  discovery  of  such  matters  is  not  tion  v.  Chemicals  &  Drugs  Co.,  (1000) 

supported    by    cases    permitting   dis-  2  Ch.  556;  ante,  notes  1  and   (c)   to 

covery  of  the  names  of  stockholders,  this  paragraph, 

as    in  §  197,    note    (c),    ante;    Union  §202,    (a)    Quoted    in    Robson    v. 

Collection  Co.  v.  Superior  Court,  149  Doyle,   191    111.   566,   61    N,   E.  435. 

Cal.    790,    87    Pac.    1035,    citing    the  See  United  States  v.  National  Lead 

text.  Co.,  75  Fed.  94;  Daisley  v.  Dun,  98 


202 


EQUITY   JURISPEUDENCE. 


298 


covery  is  subject  to  several  limitations  and  exceptions 
necessary  in  order  to  promote  the  ends  of  justice.  A  de- 
fendant is  always  compelled  to  disclose  his  frauds  and 
fraudulent  practices,  when  such  evidence  is  material  to  the 
plaintiff's  case,  even  though  the  fraud  might  be  so  great 
as  to  expose  the  defendant  to  a  prosecution  for  conspiracy, 
unless  perhaps  the   indictment  was   actually   pending.^  ^ 

Bond,  6  Beav.  88 ;  Short  v.  Mercier,  3  Macn.  &  G.  205 ;  Glynn  v.  Houston, 
1  Keen,  329;  United  States  v.  Saline  Bank,  1  Pet.  100;  Horsburg  v.  Baker, 

1  Pet.  232-236 ;  Greenleaf  v.  Queen,  1  Pet.  138 ;  Ocean  Ins.  Co.  v.  Fields, 

2  Story,  59;  Stewart  v.  Drasha,  4  McLean,  563;  Union  Bank  v.  Barker, 

3  Barb.  Cb.  358;  Northrup  v.  Hatcb,  6  Conn.  361;  Skinner  v.  Judson,  8 
Conn.  528;  Poindexter  v.  Davis,  6  Gratt,  481;  Higdon  v.  Heard,  14  Ga. 
255;  Marshall  v.  Riley,  7  Ga.  367;  King  of  the  Sicilies  v.  Wilcox,  1  Sim., 
N.  S.,  301;  United  States  v.  McRae,  L.  R.  3  Ch.  79. 

§  202,  3  Dummer  v.  Corp'n  of  Chippenham,  14  Ves.  245 ;  Lee  v.  Read, 
5  Beav.  381 ;  Janson  v.  Solarte,  2  Younge  &  C.  132,  136 ;  Green  v.  Weaver, 


Fed.  497  (answers  would  lay  defend- 
ant open  to  prosecution  for  libel); 
Marsh  v.  Davison,  9  Paige,  580; 
Thompson  v.  Whitaker  Iron  Co.,  41 
W.  Va.  574,  23  S.  E.  795;  Cross  v. 
McClenahan,  54  Md.  21;  Noyes  r. 
Thorpe,  73  N.  H.  481,  12  L.  R.  A. 
(N.  S.)  636,  62  Atl.  787  (discovery 
sought  in  aid  of  an  action  for  libel; 
production  of  the  original  writing 
containing  the  libelous  article,  and 
disclosure  of  names  of  persons  from 
whom  defendant  received  his  in- 
formation, refused).  It  has  been 
held  that  in  order  that  the  defend- 
ant may  be  excused  from  answering 
"it  must  appear,  either  by  the  bill 
of  the  complainant,  or  by  the  plea 
of  the  defendant,  that  his  answer 
may  subject  him  to  punishment,  or 
he  will  be  compelled  to  make  the 
discovery  asked  for  in  the  bill.  As 
if  a  bill  states  a  marriage  of  the 
defendant  with  a  particular  woman, 
this  is  of  itself  no  offense;  but  if  he 
pleads   that    she    is   hia   sister,   that 


fact  would  constitute  the  alleged 
marriage  a  criminal  act,  and  he  may 
refuse  to  state  anything  more,  or  to 
speak  as  to  any  fact  or  circumstance 
which  may  form  a  link  in  the  chain." 
Wolf  V.  Wolf's  Ex'r,  12  Har.  &  G. 
382. 

That  discovery  may  be  had  in  aid 
of  an  action  for  a  personal  tort, 
where  it  will  not  expose  the  defend- 
ant to  the  liabilities  mentioned  in 
the  text,  see  Reynolds  v.  Burgess 
Sulphite  Fibre  Co.,  71  N.  H.  332, 
93  Am.  St.  Rep.  535,  57  L.  R.  A.  949, 
51  Atl.  1075,  and  cases  cited,  ante, 
note  (a),  §  197. 

§  202,  (b)  See,  also,  Leitch  v.  Ab- 
bott, L.  R.  31  Ch.  Div.  374;  Pos- 
tlethwaite  v.  Eickman,  L.  R.  35  Ch. 
Div.  744.  Before  the  defendant  can 
be  compelled  to  discover  concerning 
the  transaction  claimed  by  the  plain- 
tiff to  be  fraudulent,  it  is  not  neces- 
sary that  the  bill  should  allege  the 
particulars  of  the  fraud:  Leitch  v. 
Abbott,  L.  R.  31  Ch.  Div.  374;  White 


299  THE    AUXILIABY    JUKISDICTION.  §  203 

And  a  party  may  have  so  contracted  that  he  has  thereby 
bound  himself  to  make  discovery,  although  it  might  sub- 
ject him  to  pecuniary  penalties.^  Some  other  grounds  of 
limitation  or  exception  are  stated  in  the  note.^ 

§  203.  Privileged  Communications. — Another  applica- 
tion of  the  general  doctrine  concerning  public  policy  is, 
that  no  disclosure  will  be  compelled  of  matters  a  knowl- 
edge of  which  has  been  communicated  or  obtained  through 
or  by  means  of  certain  close  confidential  relations,  which 

1  Sim.  404,  427,  432;  Mitchell  v.  Koecker,  11  Beav.  380;  Robinson  v. 
Kitchen,  35  Eng.  L.  &  Eq.  558 ;  Currier  v.  Concord,  etc.,  R.  R.,  48  N.  H. 
321 ;  Attwood  v.  Coe,  4  Sand.  Ch.  412 ;  Skinner  v.  Judson,  8  Conn.  528, 
21  Am.  Dec.  691 ;  Howell  v.  Ashmore,  9  N.  J.  Eq.  82,  57  Am.  Dec.  371 ; 
O'Connor  v.  Tack,  2  Brewst.  407. 

§  202,  4  Green  v.  Weaver,  1  Sim.  404;  Lee  v.  Read,  5  Beav.  381. 

§  202,  5  Where  the  liability  to  a  penalty  is  barred  by  lapse  of  time,  or 
where  the  right  to  it  held  by  the  plaintiff  has  been  waived  by  him :  Trinity 
House  Corp'n  v.  Burge,  2  Sim.  411;  Skinner  v.  Judson,  8  Conn.  528,  21 
Am.  Dec.  691;  Northrop  v.  Hatch,  6  Conn.  361;  Dwinal  v.  Smith,  25  Me. 
379;  Mitford's  Eq.  PI.  195-197.  Or  when  the  penalty  is  in  reality  only 
liquidated  damages:  Mitford's  Eq.  PL  195-197.  And  if  the  so-called 
forfeiture  is  merely  the  termination  or  change  of  the  party's  interest  un- 
der some  conditional  limitation,  the  rule  does  not  apply;  e.  g.,  a  gift 
to  a  woman  during  her  widowhood,  and  if  she  marry,  then  over,  she  must 
disclose  whether  she  has  married :  Hurst  v.  Hurst,  L.  R.  9  Ch.  762 ;  Chaun- 
cey  v.  Tahourden,  2  Atk.  392;  Lucas  v.  Evans,  3  Atk.  260;  Hambrook  v. 
Smith,  17  Sim.  209.  Also  where  gaming,  stock-jobbing,  and  the  like,  have 
been  made  illegal  by  statute,  and  parties  engaging  therein  liable  to  cer- 
tain pecuniary  penalties  or  forfeitures,  a  discovery  is  authorized  by  the 
statute,  although  it  might  expose  the  defendant  to  such  possible  liabilities, 
and  therefore  a  suit  for  discovery  of  sums  lost  at  play,  or  by  stock-jobbing 
operations,  and  of  securities  given  therefor,  may  be  maintained:  Mitford's 
Eq.  PL  288;  Rawden  v.  Shadwell,  Amb.  268;  Newman  v.  Franco,  2  Anstr. 
519;  Andrews  v.  Berry,  3  Anstr.  634,  635;  but  see  Short  v.  Mercier,  3 
Macn.  &  G.  205 ;  Robinson  v.  Lamond,  15  Jur.  240. 

V.    Ahrens,   L.    E.    26    Ch.    Div.    717.  Postlethwaite  v.  Rickman,  L.  R.  35 

Nor   can    the   defense    of   privileged  Ch.   Div.   744;   Williams  v.  Imbrada 

communications  be  set  up  to  defeat  Land  and  Copper  Co.,  (1895)   2  Ch. 

discovery,  where  the  communication  751.     See    this    subject    further    dis- 

is  made  in  a  fraudulent  transaction:  cussed,   post,  §  203,   note. 


§  203  EQUITY   JURISPRUDENCE.  300 

are  carefully  guarded  and  protected  from  invasion  or  in- 
terference by  the  general  policy  of  the  law.  For  this 
reason  a  married  woman  cannot  be  compelled  to  disclose 
facts  tending  to  establish  any  liability  of  her  husband,  the 
knowledge  of  which  was  acquired  by  her  through  her  mari- 
tal relation.i  On  the  same  foundation  of  principle  rests 
the  important  rule  that  a  party  will  not  be  compelled  to 
disclose  the  legal  advice  given  him  by  his  attorney  or  coun- 
sel, nor  the  facts  stated  or  matters  communicated  between 
himself  and  them  in  reference  to  the  pending  suit,  or  to 
the  dispute  which  has  resulted  in  the  present  litigation; 
nor,  on  the  other  hand,  will  these  professional  advisers 
be  compelled  or  permitted  to  disclose  the  matters  which 
they  have  learned  or  communicated  in  the  same  manner.^a 
With  respect  to  the  nature  of  the  matter  passing  between 

§  203,  1  By  the  ancient  law,  a  married  woman  cov;ld  not  testify  in  any 
civil  proceeding  either  for  or  against  her  husband,  no  matter  when,  or 
where,  or  how  she  became  informed  of  the  facts.  Under  modem  statutes 
permitting  her  to  be  a  witness  generally  in  suits  to  which  he  is  a  party,  the 
limitation  upon  her  discovery  would  doubtless  extend,  as  stated  in  the 
text,  only  to  those  matters  of  which  she  obtained  a  knowledge  through  the 
confidences  of  the  marital  relation :  See  Le  Texier  v.  Margrave  of  Anspach, 
5  Ves.  322,  15  Ves.  159;  Cartwright  v.  Green,  8  Ves.  405,  408;  Barron  v. 
Grillard,  3  Ves.  &  B.  165. 

§203,  2  Bulstrode  v.  Letchmore,  3  Freem.  5,  1  Cas.  Ch.  277;  Park- 
hurst  V.  Lowten,  2  Swanst.  194,  216;  Sandford  v.  Remington,  2  Ves.  189; 
Wilson  V,  Northampton,  etc.,  R'y  Co.,  L.  R.  14  Eq.  477;  McFarlan  v.  Rolt, 
L.  R.  14  Eq.  580 ;  Minet  v.  Morgan,  L.  R.  8  Ch.  361 ;  Currier  v.  Concord, 
etc.,  R.  R.,  48  N.  H.  321.  As  to  the  persons  between  whom  the  privilege 
exists,  the  matters  must  have  been  communicated  between  a  client  and  his 

§203,  (a)   See  Nat.  Bank  of  West  pelled  where  the  party  swears  that 

Grove  v.  Earle,  196  Pa.   St.   217,  46  he  has  no  knowledge  or  information 

Atl.   268;   Calcraft   v.  Guest,    (1898)  with  regard  to  the  matters  inquired 

1  Q.  B.  759,  67  L.  J.  Q.  B.  505,  78  of,    except   such    as    he   has    derived 

L.    T.    (N.    S.)    283,   46    Wkly.    Eep.  from       privileged       communications 

420;  Lyell  v.  Kennedy,  L.  E.  27  Ch.  made    to    him    by    his    solicitors    or 

Div.  1;  Kennedy  v.  Lyell,  L.  R.  23  their     agents,     and     that     a     belief 

Ch.  Div.  387,  affirmed,  L.  R.  9  App.  founded    on    such   knowledge    or   in- 

Cas.  81.     In  the  last  case  it  was  de-  formation  is  protected, 
cided  that  no  discovery  can  be  com- 


301  THE    AUXILIARY    JURISDICTION.  §  203 

the  client  and  his  attorney  or  counsel,  the  protection  is 
not  absolute  nor  universal.  The  privilege  from  disclosure 
embraces  those  matters  alone  '4n  which  it  is  lawful  for 
the  client  to  ask  and  the  solicitor  to  give  professional  ad- 
professional  legal  adviser,  or  some  person  acting  at  the  time  as  that  legal 
adviser's  agent  or  clerk,  and  may  be  made  to  such  legal  adviser  personally, 
or  through  the  means  of  any  intermediate  agent  employed  expressly  to 
make  the  communication,  either  by  writing  or  orally :  Anderson  v.  Bank  of 
Br.  Columbia,  L.  R.  2  Ch.  Div.  644;  Wilson  v.  Northampton,  etc.,  R'y 
Co.,  L.  R.  14  Eq.  477;  McFarlan  v.  Rolt,  L.  R.  14  Eq.  580;  Jenkyns  v. 
Bushby,  L.  R.  2  Eq.  547;  Goodall  v.  Little,  1  Sim.,  N.  S.,  155;  Lafone  v. 
Falkland  Islands  Co.,  4  Kay  &  J.  34;  Reid  v.  Langlois,  1  Macn.  &  G.  627; 
Russell  V.  Jackson,  9  Hare,  387;  Bank  of  Utica  v.  Mersereau,  3  Barb. 
Ch.  528,  49  Am.  Dec.  189 ;  Crosby  v.  Berger,  11  Paige,  377,  42  Am.  Dec. 
117;  March  v.  Ludlum,  3  Sand.  Ch.  35;  Stuyvesant  v.  Peekham,  3  Edw. 
Ch.  579 ;  Parker  v.  Carter,  4  Munf .  273,  6  Am.  Dec.  513 ;  and  communica- 
tions between  the  party's  predecessors  in  title  and  their  attorneys  have 
been  held  privileged ;  MLnet  v.  Morgan,  L.  R.  8  Ch.  361.*  Communications 
made  to  or  from,  or  in  the  hearing  of,  the  following  persons  have  been 
held  not  to  come  within  the  rule,  and  not  to  be  privileged.  The  attorney's 
son,  who  happened  to  be  present  in  his  father's  office,  but  not  connected 
with  him  in  business :  Goddard  v.  Gardner,  28  Conn.  172 ;  a  stranger  who 
happened  to  be  present  at  the  conversation  with  the  attorney :  Jackson  v. 
French,  3  Wend.  337,  20  Am.  Dec.  699 ;  a  confidential  clerk  of  the  party : 
Corps  V.  Robinson,  2  Wash.  C.  C.  388;  from  a  business  managing  agent 
of  the  party:  Anderson  v.  Bank  of  Br.  Columbia,  L.  R.  2  Ch.  Div.  644; 
but  see  Ross  v,  Gibbs,  L.  R.  8  Eq.  522;  between  two  co-defendants  after 
suit  brought :  Hamilton  v.  Nott,  L.  R.  16  Eq.  112 ;  between  defendants  for 
the  purpose  of  being  laid  before  their  attorney :  Goodall  v.  Little,  1  Sim., 
N.  S.,  155;  but  see  Jenkyns  v.  Bushby,  L.  R.  2  Eq.  547;  between  the  at- 
torneys of  the  opposite  parties:  Gore  v.  Bowser,  5  De  Gex  &  S.  30.  Not 
only  must  one  of  the  persons  be  a  legal  professional  man,  but  the  relation 
of  client  and  professional  adviser  must  actually  be  subsisting  at  the  time 
the  communication  is  made ;  therefore  a  communication  will  not  be  privi- 
leged if  made  to  an  attorney  at  law,  who  is  acting  simply  as  a  friend  of 
the  person  making  it:  Coon  v.  Swan,  30  Vt.  6;  nor  if  made  after  the 
actual  relation  of  client  and  lawyer  has  ceased :  Yordan  v.  Hess,  13  Johns. 
492;  and  the  communication  must  be  made  to  the  lawyer  in  consequence  of 
and  in  respect  of  his  professional  character :  Bunbury  v.  Bunbury,  2  Beav. 
173;  Greenlaw  v.  King,  1  Beav.  137;  Dartmouth  v.  Holdsworth,  10  Sim. 

§203.   (b)    See,    also,    Calcraft    v.       Q.  B.  505,  78  L.  T.   (N.  S.)   283,  46 
Guest,   (1898)    1  Q.  B.   759,  67  L.  J.       Wkly.  Rep.  420. 


203 


EQUITY    JURISPRUDENCE. 


302 


vice";^  and  therefore  communications  by  which  fraud  is 
contrived  or  arranged  between  a  lawyer  and  client  are 
wholly  excluded  from  the  privilege,  and  must  be  divulged.^ 
With  respect  to  the  time  at  which  the  communication  must 

476.  In  order  to  be  entitled  to  the  privilege,  the  matter  need  not  be  com- 
municated personally  between  the  client  and  his  legal  adviser;  it  may  pass 
between  them  through  an  agent:  Anderson  v.  Bank  of  Br.  Columbia,  L.  R. 
2  Cb.  Div.  644,  per  Jessel,  M.  R.j  Bunbury  v.  Bunbury,  2  Beav.  173; 
Steele  v.  Stewart,  1  Phill.  Ch.  471;  Goodall  v.  Little,  1  Sim.,  N.  S.,  155; 
Russell  V.  Jackson,  9  Hare,  387;  Jenkyns  v.  Bushby,  L.  R.  2  Eq.  547.® 

§  203,  3  Reynell  v.  Sprye,  10  Beav.  51,  11  Beav.  618 ;  Gartside  v.  Out- 
ram,  26  L.  J.  Ch,  113.®  But  where  the  fraud  was  entirely  on  the  part  of 
the  client,  was  not  imputed  to  the  attorney,  and  was  therefore  collateral 
to  the  communication  between  them,  the  communication  was  held  to  be 
privileged :  Mornington  v.  Mornington,  2  Johns.  &  H.  697.  In  the  very 
recent  case  of  Anderson  v.  Bank  of  British  Columbia,  L.  R.  2  Ch.  Div. 
644,  the  doctrine  of  privileged  communications  as  it  now  stands  under  the 
modern  decisions,  and  according  to  the  new  procedure  substituted  in  place 
of  the  "bill  of  discovery,"  was  fully  examined  by  Sir  George  Jessel,  M.  R. 
The  following  cases  also  illustrate  what  is  and  what  is  not  privileged : 
Private  and  confidential  letters  from  a  stranger  to  defendant  must  be  pro- 
duced by  him,  although  the  sender  forbid;  but  plaintiff  may  be  required 
to  give  an  undertaking  not  to  use  them  for  other  purposes  than  as  requisite 
for  his  litigation :  Hopkinson  v.  Lord  Burghley,  L.  R.  2  Ch.  447 ;  as  to 


§203,  (c)  See,  also,  Lyell  v.  Ken- 
nedy, L.  E.  23  Ch.  Div.  382,  affirmed 
in  L.  K.  9  App.  Cas.  81. 

§203,  (d)  The  privilege  from  dis- 
covery does  not  extend  to  facts  com- 
municated by  a  solicitor  to  his  client 
which  cannot  be  the  subject  of  a 
confidential  communication  between 
them,  even  though  such  facts  have  a 
relation  to  the  case  of  the  client  in 
the  action:  Foakes  v.  Webb,  28  Ch. 
Div.  287.  So  held  as  to  information 
derived  by  the  client  from  his  solici- 
tor of  the  fact  that  the  solicitor  had 
had  correspondence  with  the  solicitor 
of  his  adversary  concerning  the  sub- 
ject-matter of  the  action. 

§203,  (e)  Bullivant  v.  Attorney- 
General,    (1901)    App.    Cas.    (H.   L.) 


196  (no  proof  or  definite  charge  of 
any  fraud  or  illegality  to  displace 
the  privilege),  reversing  Reg.  \.  Bul- 
livant, (1900)  2  Q.  B.  163,  69  L.  J., 
Q.  B.,  657,  82  L.  T.  (N.  S.)  493  ("the 
privilege  does  not  extend  to  com- 
munications which  came  into  exist- 
ence for  the  purpose  of  the  client's 
procuring  advice  as  to  the  mode  in 
which  he  might  evade  the  provisions 
of  a  colonial  statute  imposing  a  duty 
in  respect  of  property"),  and  follow- 
ing Simms  v.  Registrar  of  Probates, 
(1900)  App.  Cas.  (Privy  Coun.)  323; 
Williams  v.  Imbrada  R.  R.  Land  & 
Copper  Co.,  (1895)  2  Ch.  751;  Postle- 
thwaite  v.  Rickman,  L.  R.  35  Ch. 
Div.  744. 


303  THE    AUXILIARY    JURISDICTION.  §  203 

be  made  in  order  to  be  protected,  there  has  been  no  little 
fluctuation  among  the  decisions,  and  the  rule  cannot  even 
now  be  considered  as  settled  with  certainty  and  uniformity, 
both  throughout  all  the  states  of  this  country  and  England, 
although  it  is  settled  at  last  in  England  by  the  most  recent 
decisions.  It  is  well  established  that  a  lawyer  who  has 
been  consulted  professionally  will  not  be  compelled  nor 
permitted  to  disclose  the  matters  passing  between  himself 
and  the  client,  at  whatever  time  the  communication  was 
made,  whether  during  the  pendency  of  the  litigation,  or 
in  contemplation  of  a  litigation,  after  the  dispute  resulting 
in  it  had  begun,  or  even  before  any  dispute  had  arisen  or 
any  litigation  was  anticipated.^  It  is  equally  well  estab- 
lished that  the  client  cannot  be  compelled  to  disclose  the 
advice  or  opinion  which  he  has  at  any  time  professionally 
received  from  his  legal  adviser,^  The  fluctuation  and  dis- 
crepancy in  the  decisions  relate  to  the  liability  of  the  client 
to  make  discovery  of  the  matters  which  he  has  himself 
laid  before  his  attorney  or  counsel  as  the  basis  of  profes- 
sional advice.  It  was  at  one  time  settled  by  the  decisions, 
and  the  rule  was  generally  understood  and  acted  upon, 
both  in  England  and  in  the  United  States,  and  perhaps  is 
still  so  acted  upon  in  this  country,  that  statements  of  fact 

letters  being  the  joint  pro]ierty  of  sender  and  receiver,  see  Pope  v.  Curl,  2 
Atk.  342 ;  but  that  the  sender  cannot  prevent  their  production  when  re- 
quired for  the  ends  of  justice,  see  Gee  v.  Pritchard,  3  Swanst.  402;  Will- 
iams V.  Prince  of  Wales  Life  Ins.  Co.,  23  Beav.  338.  On  the  general  rule 
as  to  what  is  privileged :  Cossey  v.  London,  etc.,  R'y,  L.  R.  5  Com.  P.  146 
(report  of  the  company's  medical  man  about  an  accident  to  plaintiff)  ; 
Smith  v.  Daniell,  L.  R.  18  Eq.  649  (letters  written  to  counsel,  but  not 
sworn  to  be  "confidential")  ;  Heath  v.  Crealock,  L.  R.  15  Eq.  257  (attorney 
of  a  defendant  who  had  absconded  not  compelled  to  disclose  his  address, 
so  that  plaintiff  might  make  jiersonal  service  of  process  on  him,  although 
a  personal  service  was  required  by  the  practice). 

§  203,  4  The  rule  is  thus  settled  whether  the  lawyer  is  examined  as  an 
ordinary  witness,  or  whether  he  is  joined  as  a  party  defendant  for  purpose 
of  discovery;  Herring  v.  Clobery,  1  Phill.  Ch.  91;  Jones  v.  Pugh,  1  Phill. 
Ch.  96;  Greenough  v.  Gaskell,  1  Mylne  &  K.  98. 

§203,  5  Ibid. 


§  203  EQUITY   JURISPRUDENCE.  304 

made  to  a  lawyer,  and  even  written  "cases"  laid  before 
liim  for  his  opinion,  before  any  disi')ute  lias  arisen,  and 
therefore  not  in  contemplation  of  an  impending  or  antici- 
pated litigation,  are  not  embraced  within  the  privilege,  but 
must  be  disclosed  or  produced  by  the  client  at  the  instance 
of  his  adversary  in  any  subsequent  judicial  controversy.^ 
Whatever  may  be  thought  of  the  correctness  of  this  partic- 
ular rule,  it  is  well  settled  in  England,  and  generally  in  the 
United  States,  that  facts  stated  or  communications  made 
by  a  client  to  his  lawyer,  either  personally  or  by  means  of 
an  intermediate  agent,  concerning  the  controversy,  while 
a  litigation  is  actually  pending,  or  before  the  litigation  has 
commenced,  hut  after  the  dispute  has  arisen  which  tends 
to  a  litigation,  and  in  contemplation  of  such  anticipated 
litigation,  are  entitled  to  the  privilege  on  the  part  of  the 

§  203,  6  Radcliffe  v.  Fursman,  2  Brown  Pari.  C.  514;  Bolton  v.  Corpo- 
ration of  Liverpool,  3  Sim.  467,  1  Mylne  &  K.  88 ;  Greenough  v.  Gaskell, 
1  Mylne  &  K.  98,  115,  per  Lord  Brougham ;  Walker  v.  Wildman,  6  Madd. 
&  G.  47,  per  Sir  John  Leach;  Knight  v.  Waterford,  2  Younge  &  C.  39, 
per  Lord  Abinger;  Hawkins  v.  Gathorcole,  1  Sim.,  N.  S.,  150;  Lord  Wal- 
singham  v.  Goodricke,  3  Hare,  122;  Paddon  v.  Winch,  L.  R.  9  Eq.  666. 
Radcliffe  v.  Fursman,  2  Brown  Pari.  C.  514,  is  the  leading  case  in  which 
the  rule  is  supposed  to  have  been  laid  down,  and  the  subsequent  decisions 
have  been  made  wholly  upon  its  authority  as  the  judgment  of  the  highest 
appellate  court,  the  judges  considering  themselves  bound  by  it,  although 
denying  its  correctness  on  principle,  and  sometimes  severely  criticising  it: 
See  Richards  v.  Jackson,  18  Ves.  474;  Preston  v.  Carr,  1  Younge  &  J. 
179;  Newton  v.  Berresford,  1  Younge,  378;  and  per  Lord  Brougham  and 
Lord  Abinger,  in  the  cases  cited  above.  But  in  truth  no  such  general  rule 
was  laid  down  or  involved  in  the  case  of  Radcliffe  v.  Fursman,  2  Brown 
Pari.  C.  514;  and  the  subsequent  decisions  made  upon  its  authority  have 
proceeded  upon  an  entire  misapprehension  of  its  facts.  This  result  is  es- 
tablished in  the  most  convincing  manner  by  the  writer  of  an  article  in  the 
Law  Magazine,  vol.  17,  p.  51  (Feb.,  1837),  who,  by  a  masterly  analysis  of 
Radcliffe  v.  Fursman,  2  Brown  Pari.  C.  514,  and  of  subsequent  cases, 
demonstrates  the  correctness  of  his  conclusion.  These  views  of  the  article 
referred  to  have  been  fully  adopted,  and  the  authority  of  Radcliffe  v. 
Fursman,  2  Brown  Pari.  C.  514,  and  of  the  cases  following  it,  has  been 
completely  overthrown  by  the  very  recent  English  decisions  cited  in  a 
subsequent  note. 


305  THE    AUXILIARY    JURISDICTION".  §  203 

client  wlio  communicates,  as  well  as  on  the  part  of  the 
attorney  or  counselor  who  receives.  The  client  cannot  be 
compelled  to  discover  the  facts  stated,  nor  to  produce  the 
written  case  submitted  for  professional  advice  and  opinion, 
under  these  circumstances. "^  There  has  always  been  much 
dissatisfaction  with  these  doctrines  supposed  to  have  been 
established  upon  authority  of  the  house  of  lords,  both 
among  the  profession  and  the  judges,  and  this  opposition 
has  finally  triumphed.  It  is  now  settled  by  the  latest  de- 
cisions in  England,  that  a  party  will  not  be  compelled  to 
disclose  matters  otherwise  privileged,  confidentially  com- 
municated, relating  to  questions  connected  with  an  exist- 
ing judicial  controversy,  although  the  communication  was 
made  before  any  dispute  arose,  and  was  therefore  not  in 
contemplation  or  anticipation  of  any  impending  or  expected 
litigation.  8  Upon  the  same  consideration  of  public  policy 
controlling  discovery,  the  rule  is  settled  that  governmental 
officers,  whether  civil  or  military,  are  not  compelled  to  dis- 
close matters  of  state,  where  the  public  interests  might  be 

§  203,  7  Bolton  v.  Corporation  of  Liverpool,  3  Sim.  467,  1  Mylne  &  K. 
88;  Greenough  v.  Gaskell,  1  Mylne  &  K.  98,  115;  Warde  v.  Warde,  1  Sim., 
N.  S.,  IS,  3  Maen.  &  G.  365 ;  Bluck  v.  Galeswortby,  2  Giflf.  453 ;  Jenkyns 
V.  Bushby,  L.  R.  2  Eq.  547;  McLellen  v.  Longfellow,  32  Me.  494,  54 
Am.  Dec.  599;  McMannus  v.  State,  2  Head,  213.  Notwithstanding  the 
strong  current  of  modern  authority,  and  the  tendency  to  maintain  and  even 
to  extend  the  privilege,  it  has  still  been  held  that  no  statements  are  pro- 
tected from  disclosure  unless  made  during  the  actual  pendency  of  a  judi- 
cial proceeding  to  which  they  relate :  Whiting  v.  Barney,  30  N.  Y.  330,  86 
Am.  Dec.  385. 

§  203,  8  This  conclusion  was  reached  by  the  court  of  appeal  in  chancery, 
in  Minet  v.  Morgan,  L.  R.  8  Ch.  361,  in  a  most  able  opinion  by  Lord 
Chancellor  Selborne,  which  contains  a  thorough  review  of  tEe  leading  deci- 
sions, and  discussion  of  the  subject  on  principle,  and  overthrows  the 
supposed  authority  of  Radcliffe  v.  Fursman,  2  Brown  Pari.  C.  514,  and 
cases  which  had  followed  it.  The  same  view  is  maintained  in  the  follow- 
ing cases,  some  of  them  decided  before  and  some  after  Minet  v.  Morgan, 
L.  R.  8  Ch.  361,  viz.:  Pearse  v.  Pearse,  1  De  Gex  &  S.  12;  Lawrence  v. 
Campbell,  4  Drew.  485;  McFarlan  v.  Rolt,  L.  R.  14  Eq.  580;  Turton  v. 
Barber,  L.  R.  17  Eq.  329;  Wilson  v.  Northampton,  etc.,  R'y  Co.,  L.  B. 
1—20 


§  204  EQUITY    JURISPEUDENCB.  306 

harmed  by  such  a  disclosure,  at  the  suit  of  a  private  indi- 
vidual.^ 

§  204.  Manner  of  Making  Discovery. — Having  thus  as- 
certained what  matters  are  exempt  from  a  discovery,  and  of 
what  a  discovery  will  be  compelled,  it  remains  to  consider 
certain  settled  rules  concerning  the  manner  in  which  the 
discovery  must  be  made  by  the  defendant.  1.  Assuming 
that  the  matters  called  for  are  proper  subjects  of  a  dis- 
covery; that  they  belong  to  the  plaintiff's  case,  and  not  to 
the  defendant's;  that  they  are  not  privileged,  or  are  not 

14  Eq.  477;  Walsbam  v.  Stainton,  2  Hem.  &  M.  1;  Manser  v.  Div,  1  Kay 
&  J.  451.* 

In  addition  to  the  cases  heretofore  cited,  the  following  are  illustrations 
c{  the  general  doctrines  concerning  confidential  communications  which  are 
privileged :  Nias  v.  Northern,  etc.,  R'y  Co.,  3  Mylne  &  C.  355,  357,  per 
Lord  Cottenham;  Flight  v.  Robinson,  8  Beav.  22;  Reynell  v.  Sprye,  10 
Beav.  51;  Simpson  v.  Brown,  33  Beav.  482;  Galley  v.  Richards,  19  Be.-w. 
401;  Beadon  v.  King,  17  Sim.  34;  Goodall  v.  Little,  1  Sim.,  N.  S.,  155; 
Garland  v.  Scott,  3  Sim.  396 ;  Gresley  v.  Mousley,  2  Kay  &  J.  288 ;  Lafone 
v.  Falkland  Islands  Co.,  4  Kay  &  J.  34;  Russell  v.  Jackson,  9  Hai-e,  387; 
Chant  V.  Brown,  9  Hare,  790 ;  Glyn  v.  Caulfield,  3  Macn.  &  G.  463 ;  Storey 
v.  Lord  Lennox,  1  Mylne  &  C.  525;  Burrell  v.  Nicholson,  1  Mylne  &  K. 
680;  Hughes  v.  Biddulph,  4  Russ.  190;  Herring  v.  Clobery,  1  Phill.  Ch. 
91;  Thompson  v.  Falk,  1  Drew.  21;  Charlton  v.  Coombes,  4  Giff.  372; 
Nicoll  V.  Jones,  2  Hem.  &  M.  588;  Combe  v.  Corporation  of  London,  15 
L.  J.  Ch.  80 ;  Ross  v.  Gibbs,  L.  R.  8  Eq.  522 ;  Parker  v.  Carter,  4  Munf . 
273,  6  Am.  Dec.  513;  Chew  v.  Farmers'  Bank,  2  Md.  Ch.  231;  Williams 
v.  Fitch,  18  N.  Y.  546.s 

§203,  9  Smith  v.  East  India  Co.,  1  PhHl.  Ch.  50;  Rajah  of  Coorg  v. 
East  India  Co.,  25  L.  J.  Ch,  345,  365;  and  see  Marbury  v.  Madison, 
1  Cranch,  49. 

§203,   (f)     See,    also,    Calcraft    v.  68   L.   J.   Ch.    24,    79   L.   T.    (N.   S.) 

Guest,   (1898)    1  Q.  B.  759,  67  L.  J.  373,  47  Wkly.  Rep.  91   (as  to  notes 

(Q.   B.)    505,   48   L.   T.    (N.   S.)    283,  of   proceedings  in   open   court).     As 

46     Wkly.    Rep.    420;     Goldstone    v.  to   the  inspection   of  affidavits  in   a 

Williams,    Deacon    &    Co.,    (1899)    1  court  of  lunacy,  at  the  discretion  of 

Ch.  47.  the  court,  see  In  re  Strachan,  (1895) 

§203,   (s)   See,  also,  Ainsworth  v.  1    Ch.    441.     That    trade    secrets    ap» 

Wilding,   (1900)   2  Ch.  315,  69  L.  J.  privileged,  see  Federal  Mfg.  &  Print- 

Ch.   695,   49   Wkly.   Rep.   539;    Gold-  ing  Co.  v.  International  Bank  Note 

stone  V.  Williams,   (1898)   1   Ch.  47,  Co.,  119  Fed.  385. 


307  THE    AUXILIARY    JUEISDICTIOIT.  §  204 

exempt  within  the  operation  of  any  other  doctrine, — then 
the  defendant  must  disclose  all  material  facts;  in  other 
words,  if  he  answers  at  all,  he  must  answer  fully.  The 
court  will,  however,  in  the  exercise  of  its  discretion,  judge 
of  the  materiality,  and  guard  him  against  oppressive,  vex- 
atious, or  impertinent  inquiries. ^  2.  The  answers  of  the 
defen,dant  must  be  complete,  so  that  the  information  which 
they  give  will  be  of  substantial  use  to  the  plaintiff  ;2    and 

§  204,  1  This  particular  rule,  however,  is  chiefly  one  of  practice  in  fram- 
ing an  answer,  and  applies  to  suits  for  discovery  and  relief,  as  well  as 
those  for  a  discovery  alone.     It  means  that  if  the  defendant  does  not  raise 
any  question  by  plea  or  demurrer  to  the  bill,  but  answers,  he  must  make 
a  full  discovei"y  as  to  all  matters  inquired  of;  he  cannot,  in  his  answer, 
deny  a  portion  of  the  plaintiff's  allegations,  and  then  claim  that  a  dis- 
covery as  to  such  portion  is  made  immaterial:*  Saunders  v.  Jones,  L.  R. 
7  Ch.  Div.  435,  443 ;  Lancaster  v.  Evors,  1  Phill.  Ch.  349 ;  Reade  v.  Wood- 
ruffe,  24  Beav.  421;  Chichester  v.  Marquis  of  Donegal,  L.  R.  4  Ch.  416, 
L.  R.  5  Ch.  497;  Thompson  v.  Dunn,  L.  R.  5  Ch.  573;  Carver  v.  Pinto 
Leite,  L.  R.  7  Ch.  90;  Elmer  v.  Creasy,  L.  R.  9  Ch.  69,  and  cases  cited 
per  Lord  Selborne;  Saull  v.  Browne,  L.  R.  9  Ch.  364;  Hurst  v.  Hurst, 
L.  R.  9  Ch.  762;  Moore  v.  Craven,  L.  R.  7  Ch.  94,  note;  Hichens  v.  Con- 
greve,  4  Russ.  562 ;  West  of  Eng.,  etc.,  Bank  v.  Niekolls,  L.  R.  6  Ch.  Div. 
613;  Marquis  of  Donegal  v.  Stewart,  3  Ves.  446;  Brookes  v.  Boucher,  8 
Jur.,  N.  S.,  639;  Inglessi  v.  Spartali,  29  Beav.  564;  Wier  v.  Tucker,  L.  R 
14  Eq.  25,  and  cases  cited;  Meth.  Epis.  Church  v.  Jaques,  1  Johns.  Ch 
65 ;  Phillips  v.  Provost,  4  Johns.  Ch.  205 ;  Cuyler  v.  Bogert,  3  Paige,  186 
Bank  of  Utica  v.  Mersereau,  7  Paige,  517;  King  v.  Ray,  11  Paige,  235 
Champlin  v.  Champlin,  2  Edw.  Ch.  362;  Waring  v.  Suydam,  4  Edw.  Ch 
426;  Brooks  v.  Byam,  1  Story,  296;    Langdon  v.  Goddard,  3  Story,  13 
Kittridge  v.  Claremont  Bank,  3  Story,  590;  Wootten  v.  Burch,  2  Md.  Ch 
190 ;  Hagthorp  v.  Hook,  1  Gill  &  J.  272 ;  Salmon  v.  Clagett,  3  Bland,  142 
Robertson  v.  Bingley,  1  McCord  Eq.  333;  French  v.  Rainey,  2  Tenn.  Ch 
641 ;  Shotwell  v.  Struble,  21  N.  J.  Eq.  31 ;  Walter  v.  McNabb,  1  Heisk.  703 

§  204,  2  As,  for  example,  when  accounts  are  called  for,  they  must  be 
reasonably  made  out,  and  not  simply  the  books  through  which  the  items 
are  scattered,  produced  for  inspection :  White  v.  Williams,  8  Ves.  193 ; 
Attorney-General  v.  East  Retford,  2  Mylne  &  K.  35;  Drake  v.  Symes, 
John.  647;  but  this  is  a  matter  under  the  discretionary  control  of  the 
court,  and  a  defendant  will  not  be  subjected  to  unreasonable  labor  and 
expense :  See  Christian  v.  Taylor,  11  Sim.  401. 

§  204,  (a)  Sec,,  under  the  new  fed-  Co.  v.  Union  Pacific  R.  Co.,  241  Fed. 
eral  equity  rules,  Pressed  Steel  Car       964. 


§  204  EQUITY    JURISPRUDENCE.  308 

must  be  to  the  best  of  the  defendant's  knowledge,  informa- 
tion, and  belief.  A  defendant  is  bound  to  obtain  information 
from  all  means  reasonably  within  his  power.  If  documents 
are  ordered  to  be  produced,  it  is  no  excuse  for  non- 
production  that  they  are  in  the  possession  of  a  third  person, 
or  even  that  a  third  person  has  a  lien  upon  or  an  interest 
in  them.3  But  if  documents  belong  wholly  or  in  part  to  a 
third  person,  not  a  party  to  the  suit,  their  production 
will  not  be  compelled.^  3.  The  answers  must  be  distinct, 
positive  in  their  statements,  not  leaving  facts  to  be  inferred 
argumentatively,  and  giving  specific  replies  to  specific  ques- 
tions ;5  but  must  not  be  unnecessarily  minute  and  prolix, 
especially  in  setting  forth  accounts. ^ 

.  §204,  3  Glengall  v.  Frazer,  2  Hare,  99;  Stuart  v.  Bute,  11  Sim.  442; 
Taylor  v.  Rundell,  Craig  &  P.  104,  1  Phill.  Ch.  222;  Clinch  v.  Financial 
Corporation,  L.  R.  2  Eq.  271.  Where  a  defendant,  who  was  bound  to 
produce  certain  documents,  had  become  a  bankrupt,  and  had  changed  his 
attorneys,  and  the  documents  were  in  the  possession  of  his  former  attor- 
neys, who  had  a  lien  upon  them  for  their  charges,  this  was  held  to  be  no 
excuse,  and  he  was  ordered  to  produce  them:  Vale  v.  Oppert,  L.  R.  10 
Ch.  340,  342;  but  James,  L.  J.,  said  that  an  attorney  cannot  set  up  his 
lien  as  against  the  right  of  other  parties  to  have  a  production;  and  to  the 
same  effect  is  Belaney  v.  Ffrench,  L.  R.  8  Ch.  918.  See  also,  as  to  the 
production  of  documents  in  the  possession  of  third  persons,  etc..  Ex  parte 
Shaw,  Jacob,  270;  Rodick  v.  Gandell,  10  Beav.  270;  Palmer  v.  Wright, 
10  Beav.  234;  North  v.  Huber,  7  Jur.,  N.  S.,  767;  In  re  Williams,  7  Jur., 
N.  S.,  323;  Liddell  v.  Norton,  23  L.  J.  Ch.  169;  Bethell  v.  Casson,  1  Hem. 
&  M.  806.  It  is  no  excuse  for  the  non-production  of  documents  that  third 
persons,  not  parties  to  the  suit,  are  interested  in  them:  Kettlewell  v. 
Barstow,  L.  R.  7  Ch.  686.  Answers  on  information  and  belief  may  be 
required:  Fry  v.  Shehee,  55  Ga.  208. 

§  204,  4  Hadley  v.  McDougall,  L.  R.  7  Ch.  312 ;  Warrick  v.  Queen's 
College,  L.  R.  4  Eq.  254;  Vyse  v.  Foster,  L.  R.  13  Eq.  602;  but  the  nature 
and  extent  of  such  third  person's  ownership  must  be  explained  when  this 
excuse  is  set  up :  Bovill  v.  Cowan,  L.  R.  5  Ch.  495. 

§  204,  5  Faulder  v.  Stuart,  11  Ves.  296;  Wharton  v.  Wharton,  1  Sim.  & 
St.  235;  Tipping  v.  Clarke,  2  Hare,  383,  389;  Anonymous,  2  Younge  &  C. 
310;  Duke  of  Brunswick  v.  Duke  of  Cambridge,  12  Beav.  281. 

§  204,  6  Noi-way  v.  Rowe,  1  Mer.  346 ;  Byde  v.  Masterman,  Craig  &  P. 
265;  but  documents  are  sometimes  permitted  to  be  given  in  extenso:  See 
Parker  v.  Fairlie,  1  Sim.  &  St.  295;  Lowe  v.  Williams,  2  Sim.  &  St.  574. 


309 


THE    AUXILIARY   JURISDICTION. 


§205 


§  205.  Production  and  Inspection  of  Documents.^ — A 
branch  of  this  general  subject  of  discovery  is  the  doctrine 
concerning  the  production  and  submission  to  inspection  by 
the  plaintiff  of  documents  which  the  defendant  admits  to 


§205,  (a)  Sections  205,  206,  are 
cited  in  Utah  Const.  Co.  v.  Montana 
R.  Co.,  145  Ted.  981. 

Personal  and  Real  Property,  Other 
Than  Documents,  in  Defendant's 
Possession. — The  right  to  the  produc- 
tion and  inspection  of  property, 
other  than  documents,  in  the  posses- 
sion of  the  defendant  in  a  bill  of 
discovery,  was  examined  with  great 
care  in  the  recent  case  of  Reynolds 
V.  Burgess  Sulphite  Fiber  Co.,  71 
N.  H.  332,  93  Am.  St.  Rep.  535,  57 
L.  R.  A.  949,  51  Atl.  1075.  The  fol- 
lowing are  the  chief  points  in  the 
opinion  of  the  court,  by  Chase,  J.: 
The  right  of  discovery  in  respect  of 
documents  does  not  depend  upon  the 
fact  that  the  documents  are  muni- 
ments of  title  to  property  in  dispute 
in  the  action  at  law,  or  that  they  are 
relevant  to  an  accounting  between 
the  parties  sought  in  such  action: 
Anonymous,- 2  Ves.  Sr.  620;  Mooda- 
lay  V.  Morton,  1  Bro.  C.  C.  469;  Bur- 
rell  V.  Nicholson,  1  Mylne  &  K.  680; 
Storey  v.  Lennox,  1  Mylne  &  C.  523; 
Smith  V.  Beaufort,  1  Plare,  507; 
Chadwick  v.  Bowman,  L.  R.  16  Q.  B. 
Div.  561;  Peck  v.  Ashley,  12  Met. 
478.  Discovery  of  personal  property 
other  than  documents  was  had  in 
Marsden  v.  Panshall,  1  Vern.  407 
(1686);  Macclesfield  v.  Davis,  3  Ves. 
&  B.  16,  and  in  the  following  patent 
cases;  Bovill  v.  Moore,  2  Coop.  Ch. 
Cas.  56  (Lord  Eldon) ;  Browne  v. 
Moore,  3  Bligh,  178;  Russell  v.  Cow- 
ley, 1  Web.  Pat.  Caa.  457;  Morgan 
V.  Seaward,  1  Web.  Pat.  Cas.  167; 
Patent  Type  Founding  Co.  v.  Walter, 
John.  727.  Inspection  of  real  prop- 
erty   was     ordered     in    Lonsdale    v. 


Curwcn,  3  Bligh,  168;  Walker  v. 
Fletcher,  3  Bligh,  172;  East  India 
Co.  V.  Kynaston,  3  Bligh,  153;  At- 
torney-General v.  Chambers,  12  Beav. 
159;  Lewis  v.  Marsh,  8  Hare,  97. 
It  is  immaterial,  in  such  cases,  that 
the  complainant  has  no  interest  in 
the  property  to  be  inspected.  In 
the  principal  case  it  was  held  that  a 
bill  would  lie  to  compel  the  right 
of  inspection  of  fragments  of  ma- 
chinery in  the  possession  of  the 
defendant,  in  aid  of  the  proper  prep- 
aration of  the  plaintiff  for  a  trial 
of  a  suit  at  law  for  personal  injuries 
caused  by  the  defendant's  negli- 
gence. 

In  the  interesting  case  of  Will- 
iams v.  Phiel,  66  Fla.  192,  63  South. 
658,  the  discovery  sought  was  aided 
by  the  appointment  of  a  receiver. 
This  was  an  action  for  discovery  in 
aid  of  an  action  at  law  for  royalties 
for  phosphate  rock  taken  from 
land  in  defendant's  possession.  The 
court  appointed  a  receiver  to  go  on 
the  property,  erect  a  phosphate 
plant  thereon,  and  actually  mine,  in 
order  to  see  if  there  was  merchant- 
able phosphate  rock. 

The  principle  was  pushed  to  the 
extreme  in  the  case  of  Mutual  Life 
Ins.  Co.  V.  Griesa,  156  Fed.  398. 
There  the  courf  aided  a  life  insur- 
ance company  in  establishing  its  de- 
fense, the  suicide  of  the  decedent, 
by  ordering  the  exhumation  of  the 
body  —  a  very  questionable  ruling; 
which  the  court  of  appeals  (Griesa 
V.  Mutual  Life  Ins.  Co.,  169  Fed. 
509,  94  C.  C.  A.  635),  declined  to 
sanction. 


§  205  EQUITY    JURISPRUDENCE.  310 

be  in  his  possession,  and  wMcli  are  liable  to  a  discovery. 
I  shall  state  the  particular  rules  regulating  the  operation 
of  this  doctrine,  without  repeating  those  which  are  com- 
mon to  it,  and  to  all  other  kinds  of  discovery.^  It  should 
be  carefully  borne  in  mind  that  the  doctrine  concerning 
the  production  and  inspection  of  documents  relates  entirely 
to  their  disclosure  for  the  purjDose  of  being  used  as  evi- 
dence, or  to  aid  in  the  trial  of  a  pending  or  contemplated 
litigation,  and  has  no  connection  whatever  with  the  owner- 
ship of  or  final  right  of  possession  to  the  documents  in 
question.^  In  most  instances,  the  ownership  of  the  docu- 
ments sought  to  be  produced  will  not  be  at  all  in  issue. 
But  even  in  an  action  expressly  brought  to  establish  the 
plaintiff's  title  to  documents  and  to  recover  their  posses- 
sion, the  production  of  them  before  the  hearing  must  be 
governed  by  the  settled  rules  as  to  discovery.  The  plain- 
tiff has  otherwise  no  right  to  possess  or  to  see  them  until  a 
decree  is  rendered  in  his  favor;  for  such  right  is  the  very 
matter  in  issue,  and  to  decide  that  it  existed  would  be  to 
decide  the  whole  merits  of  the  controversy  upon  a  prelim- 
inary application.  It  is  well  settled,  therefore,  that  the 
matter  of  the  production  and  inspection  of  documents  de- 
pends upon  the  same  principles  and  doctrines  which  govern 
discovery  in  general.^ 

§  205,  1  The  rules  as  to  materiality,  as  to  purposes  for  which  a  dis- 
closure is  proper,  as  to  what  is  privileged,  and  the  like,  apply  with  equal 
force  to  this  and  to  other  instances  of  discovery.  In  fact,  a  large  number 
of  the  decisions  already  cited  illustrating  these  rules  relate  directly  to  the 
production  of  documents, 

§  205,  2  By  the  original  chancery  practice,  an  interrogatory  or  inter- 
rogatories, more  or  less  specific  according  to  the  plaintiff's  choice,  are  in- 
serted in  the  bill,  asking  the  defendant  whether  he  has  any  documents,  or 
such   and   such  particular   documents,   in  his  possession.     If  his   answer 

§205,  (b)  Cited  to  this  effect  in  defense  in  litigation  pending  or  con- 
Reynolds  V,  Burgess  Sulphite  Fibre  templated.  Fuller  v.  Hollander,  61 
Co.,  71  N.  H.  332,  93  Am.  St.  Rep,  N.  J.  Eq.  648,  88  Am.  St.  Rep.  456, 
535,  57  L.  R.  A.  949,  51  Atl.  1075.  47  Atl.  646  (citing  Pom.  Eq.  Jur., 
An  inspection  of  books,  etc.,  can  be  §§  190-209). 
had  only  in  aid  of  a  prosecution  or 


311  THE    AUXILIARY    JURISDICTION.  §  206 

§  206.  It  follows  from  this  fact  that  the  production  of 
documents  rests  wholly  on  the  defendant 's^  own  admis- 
sions, contained  either  in  his  answer  to  the  bill,  or  in  his 
answers  to  interrogatories,  or  in  his  affidavit.  If  his  an- 
swers or  his  affidavit  are  evasive  or  insufficient,  he  may 
be  called  upon  to  make  them  more  specific,  and  to  admit  or 
deny;  but  when  he  has  once  directly  denied  the  possession 
of  documents,  or  their  materiality  to  the  plaintiff's  case,  the 
court  will  not  compel  their  production.  The  truth  of  the 
defendant's  statements  cannot  be  contested,  either  by  his 
own  cross-examination,  or  by  means  of  any  contradictory 
evidence  offered  on  the  part  of  the  plaintiff.^  The  admis- 
sion authorizing  an  order  to  produce  must  cover  two  facts, 
— the  possession  of  the  documents  and  their  materiality. 
Manual  possession  is  not  essential.  It  is  enough  if  the 
documents  are  either  in  the  actual  possession  of  the  de- 
admits  his  possession  of  material  documents,  an  order  is  made,  on  the 
plaintiff's  motion,  for  their  production,  so  that  they  may  be  inspected. 
Under  the  more  recent  practice,  the  defendant's  admissions  are  made  in  his 
answer  to  interrogatories  filed,  or  in  his  affidavit  made  in  reply  to  the 
plaintiff's  motion. 

§  206,  1 1  say  the  defendant's  admission,  because  it  is  ordinarily  the  de- 
fendant who  is  called  upon  to  produce.  But  the  same  rule  applies  alike 
to  the  plaintiff  when  the  defendant  files  interrogatories  and  moves  for  a 
disclosure  and  production  by  the  plaintiff,  without  a  resort  to  a  cross-bill 
for  a  discovery,  as  is  pei-mitted  by  the  modern  practice  in  England  and  in 
many  of  the  states. 

§  206,  2  Wright  v.  Pitt,  L.  R.  3  Ch.  809,  810,  per  Page  Wood,  L.  J. 
"The  general  rule  is,  that  the  party  seeking  discovery  of  documents  must 
be  satisfied  with  his  opponent's  affidavit  on  the  subject,  and  cannot  cross- 
examine  or  give  evidence  contradicting  it":  Reynell  v.  Sprye,  1  De  Gex, 
M.  &  G.  656 ;  and  see  Robbins  v.  Davis,  1  Blatch.  238.  There  is,  how- 
ever, one  exception  to  this  rule.  Notwithstanding  the  denials  of  the  de- 
fendant's affidavit  that  he  has  any  other  documents,  if  the  court  has  a 
"reasonable  suspicion,"  arising  from  other  admissions  of  the  affidavit  or 
of  his  answer,  that  the  defendant  must  have  other  documents  in  his  pos- 
session, it  may  compel  him  to  make  a  further  affidavit  containing  more 
specific  statements:  Saull  v.  Browne,  L.  R.  17  Eq.  402;  Noel  v.  Noel,  1 
De  Gex,  J.  &  S.  468;  for  the  exact  limitations  of  this  exception,  see  Wright 
V.  Pitt,  L.  R.  3  Ch.  809,  810. 


§  207  EQUITY   JURISPRUDENCE.  312 

fendant,  or  are  under  his  control;  that  is,  are  in  the  custody 
of  an  attorney,  agent,  or  other  third  person,  whose  custody 
of  tliem  the  defendant  can,  by  the  exercise  of  his  lawful 
IDOwers,  control,  or  from  whom  he  can,  by  the  exercise  of 
such  powers,  obtain  the  possession  himself.  The  rule  is 
the  same  even  when  the  third  person  has  some  lien  on  the 
papers.3  But  if  the  documents  belong  wholly  or  in  part  to 
a  third  jDerson  not  a  party  to  the  suit,  or  if  they  are  in  the 
joint  possession  of  the  defendant  and  of  some  third  person 
not  a  party  to  the  suit  by  virtue  of  the  latter 's  separate 
interest  or  right  in  them,  their  production  will  not  be  com- 
pelled without  the  consent  of  such  third  person.* 

§  207.  Since  the  same  rules  as  to  materiality,  privilege, 
and  the  like,  which  govern  discovery,  apply  to  the  produc- 

§206,  3  Vale  v.  Oppert,  L.  R.  10  Ch.  340,  342 ;«  an  attorney  cannot 
set  up  his  lien  on  the  documents  as  against  a  party's  right  to  their  produc- 
tion; and  to  the  same  effect  is  Belaney  v.  Ffrench,  L.  R.  8  Ch.  918.*  As 
to  the  production  of  documents  in  the  custody  of  third  persons,  etc.,  see 
also  Ex  parte  Shaw,  Jacob,  270 ;  Rodick  v.  Gandell,  10  Beav.  270 ;  Palmer 
V.  Wright,  10  Beav.  234;  North  v.  Huber,  7  Jur.,  N.  S.,  767;  In  re 
Williams,  7  Jur.,  N.  S.,  323;  Liddell  v.  Norton,  23  L.  J.  Ch.  169;  Bethell 
V.  Casson,  1  Hem.  &  M.  806 ;  Morrice  v.  Swaby,  2  Beav.  500 ;  Lady  Beres- 
ford  V.  Driver,  14  Beav.  387;  Robbins  v.  Davis,  1  Blatch.  238. 

§  206,  4  Hadley  v.  McDougal,  L.  R.  7  Ch.  312 ;  but  the  nature  and  extent 
of  such  third  person's  ownership  must  be  explained  when  this  excuse  is 
set  up :  Bo\'ill  v.  Cowan,  L.  R.  5  Ch.  495 ;  as  to  the  non-production  of 
documents  partly  belonging  to  third  person,  or  in  joint  possession  of  third 
person,  see  also  Warrick  v.  Queen's  College,  Oxford,  L.  R.  4  Eq.  254; 
Vyse  V.  Foster,  L.  R.  13  Eq.  602 ;  Edmonds  v.  Foley,  30  Beav.  282 ;  Robert- 
son v.  Shewell,  15  Beav.  277;  Morrell  v.  Wootten,  13  Beav.  105;  Chant 
V.  Brown,  9  Hare,  790;  Ford  v.  Dolphin,  1  Drew.  222;  Penney  v.  Goode, 
1  Drew.  474;  Taylor  v.  Rundell,  Craig  &  P.  104;  Murray  v.  Walter,  Craig 
&  P,  114.  But  the  mere  fact  that  third  persons  are  interested  in  the 
documents  is  not  an  excuse  for  their  non-production :  Kettlewell  v.  Bar- 
stow,  L.  R.  7  Ch.  686;  Hercy  v.  Ferrers,  4  Beav.  97;  Hopkinson  v.  Lord 
Burghley,  L.  R.  2  Ch.  447. 

§206,  (a)  See,  also,  Lewis  V.  Pow-  (documents  in  possession  of  coun- 
ell,  (1897)  1  Ch.  679;  Lacoss  r.  Town       sel). 

of   Lebanon    (N.   H.),   101   Atl.    364  §206,  (b)  See,  also,  In  re  Hawkes, 

(1898)   2  Ch.  1,  reviewing  the  cases. 


313  THE    AUXILIARY    JUEISDICTION.  §  207 

tion  of  documents,  it  follows  that  in  order  for  the  plaintiff 
to  be  able  to  compel  the  production  and  inspection  of  the 
documents  admitted  to  be  in  the  defendant's  possession, 
their  materiality  to  the  plaintiff's  case  must  also  be  ad- 
mitted by  the  defendant.  If,  therefore,  the  defendant,  hav- 
ing admitted  certain  documents  to  be  in  his  possession,  or 
having  furnished  a  list  of  them,  definitely  denies  that  they 
are,  or  that  any  portion  or  provision  of  them  is,  material 
to  or  relates  to  the  plaintiff's  case,  he  is  freed  from  the  obli- 
gation of  producing  them.^  As  has  already  been  explained, 
the  ground  upon  which  the  plaintiff's  right  to  the  produc- 
tion of  documents,  as  well  as  to  any  other  discovery,  must 
rest  is,  that  they  relate  to  and  are  material  to  his  own  case, 
or  to  the  relief  which  is  demanded  in  his  suit;  he  has  no 
right  to  a  discovery  of  the  defendant's  evidence,  nor  to  the 
production  or  inspection  of  papers  connected  alone  with  the 
defendant's  title.  If,  however,  the  documents  are  material 
to  his  own  case  or  to  the  relief  he  demands,  the  fact  that 
they  may  also  be  evidence  for  defense,  or  may  tend  to  sup- 
port the  defendant's  title  or  contention,  does  not  prevent 
the  plaintiff  from  compelling  their  production, 2  b    in  apply- 

§  207,  1  But,  under  the  circumstances  described,  the  defendant's  state- 
ment on  oath  that  he  believes  the  documents  contain  nothing  relating  to 
the  plaintiff's  case,  is  not  enough;  he  must  distinctly  and  definitely  deny 
the  fact;  Atty.-Gen.  v.  Corp'n  of  London,  2  Macn.  &  G.  247;  as  examples 
of  the  rule  stated  in  the  test,  and  of  its  various  applications,  see  ]\Iinet 
V.  Morgan,  L.  R.  8  Ch.  361,  per  Lord  Selborne;  Kettlewell  v.  Barstow, 
L.  R.  7  Ch.  686;  Patch  v.  Ward,  L.  R.  1  Eq.  436,  439.** 

§  207,  2  See  ante,  §§  198,  201,  202. 

§  207,   (a)    The   defendant's  denial  74  Ohio  St.  1,  6  L,  R.  A.  (N.  S.)  325, 

of  the  materiality  of  the  documents  77  N.  E.  276,  the  rule  is  stated  that 

will   not   Be   taken    as   conclusive   if  plaintiff  is  entitled  to  the  production 

the  court  can  see  from  the  nature  of  of   such   documents   as   are   material 

the   case   or   of   the   documents   that  and  necessary  to  his  case,  but  not  to 

the     party    has     misunderstood     the  the     discovery    of     the     manner     in 

effect  of  the   documents:   Roberts  v.  which  defendant's   case  is  to  be  es- 

Oppenheim,  L.   R.   26   Ch.    Div.    724.  tablished,    nor     of     evidence     which 

§  207,  (b)  See,  also,  Dock  v.  Dock,  relates    exclusively     to    defendant's 

180  Pa.  St.  14,  57  Am.  St.  Eep.  617,  case. 
36    Atl.   411.     In  re   J.  H.  Schoepf, 


§  208  EQUITY    JURISPKUDENCE.  314 

ing  this  principle  to  a  variety  of  circumstances,  several 
special  rules  have  been  established  by  the  decisions  which 
are  found  in  the  f oot-note.^ 

§  208.     IV.     When,  How  Far,  and  for  Whom  may  the 
Answer  in  the  Discovery  Suit  be  Used  as  Evidence.^ — If  the 

§  207,  3  A  defendant  is  not,  in  general,  required  to  produce  his  own  title 
deeds,  which  are  evidence  only  of  his  own  title;  and  therefore,  in  suits 
against  a  mortgagee  to  redeem,  or  other  suits  against  him  to  reach  the 
land,  he  is  not  bound  to  produce  the  title  deeds  which  have  been  delivered 
to  him,  until  the  entire  mortgage  debt,  interest  and  costs,  have  been  paid 
in  full:  Chichester  v.  Marquis  of  Donegal,  L.  R.  5  Ch.  497;  Minet  v. 
Morgan,  L.  R.  11  Eq.  284;  Patch  v.  Ward,  L.  R.  1  Eq.  436;  Thompson 
V.  Engle,  4  N.  J.  Eq.  271 ;  Cullison  v.  Bossom,  1  Md.  Ch.  95.  This  gen- 
eral rule  is  subject  to  an  exception  growing  out  of  the  doctrine  as  to  dis- 
covery being  material  to  the  plaintiff's  contention;  viz.,  if  a  prima  facie 
case  is  made  out  by  the  plaintiff  impeaching  the  validity  of  defendant's 
title  deed  on  ground  of  fraud  and  the  like,  or  that  the  defendant's  deed 
contains  some  clause  or  provision  operating  in  favor  of  the  plaintiff's 
claim,  in  such  cases  a  production  of  the  deed  will  be  compelled,  for  it  then 
becomes  evidence  material  to  the  plaintiff's  case :  Republic  of  Costa  Rica 
V.  Erlanger,  L.  R.  19  Eq.  33,  44,  45,  per  Malins,  V.  C. ;  Beckford  v.  Wild- 
man,  16  Ves.  438 ;  Balch  v.  Symes,  Turn.  &  R.  87 ;  Bassf ord  v.  Blakesley, 
6  Beav.  131,  133;  Kennedy  v.  Green,  6  Sim.  6;  Latimer  v.  Neate,  11 
Bligh,  112,  4  Clark  &  F.  470;  Follet  v.  Jefferyes,  1  Shn.,  N.  S.,  1;  Free- 
man V.  Butler,  33  Beav.  289 ;  Crisp  v.  Platel,  8  Beav.  62 ;  Cullison  v. 
Bossom,  1  Md.  Ch.  195.  A  mortgagee  is,  however,  always  required  to 
produce  the  mortgage  itself  under  which  he  holds,  and  suffer  it  to  be  in- 
spected by  the  mortgagor:  Patch  v.  Ward,  L.  R.  1  Eq.  436,  439.  If  a 
defendant  is  a  public  officer  and  has  official  custody  of  public  documents, 
he  will  not  be  required  to  produce  them  by  way  of  answer:  Salmon  v. 
Claggett,  3  Bland,  145.  It  was  held  in  Boyd  v.  Petrie,  L.  R.  3  Ch.  818, 
that  an  application  by  either  party  before  trial,  to  have  a  specified  docu- 
ment in  the  hands  of  his  adversary  produced  and  submitted  to  the  inspec- 
tion of  intended  witnesses  of  the  party  applying,  so  that  they  may  be  able 
to  testify  concerning  it  at  the  trial,  is  a  very  special  application,  and  must 
be  supported  by  an  affidavit  of  very  special  circumstances  showing  the 
necessity  of  such  a  course. 

§208,    (a)    Cited     in     District     of  are  not  conclusive  against  the  other 

Columbia  v.  Robinson,  180  U.  S.  92,  party  at  law.     Cited,  also,  in  Bcem 

21   Sup.   Ct.   283,   to   the   effect   that  v.  Farrell  (Iowa),  108  N.  W,  1044. 
the  answers  to  the  bill  of  discovery 


315  THE   AUXILIARY   JURISDICTION.  §  208 

suit  is  one  for  discovery  alone  without  relief,  in  aid  of  some 
action  or  proceeding  in  a  court  of  law,  and  the  answer  is 
used  as  evidence  on  the  trial  of  such  action,  its  use  is  en- 
tirely governed  by  the  legal  rules  applicable  to  such  species 
of  testimony.  It  is,  in  fact,  the  admissions  of  one  party  to 
the  controversy,  proved  by  his  adversary,  differing  from 
ordinary  admissions  only  by  its  more  formal  and  elaborate 
character.  It  follows,  therefore,  that  if  the  party  obtaining 
the  discovery  reads  any  portion  of  the  answer  in  evidence, 
the  whole  of  it  must  be  read  on  the  demand  of  the  one  who 
made  it,  so  that  the  jury  may  be  possessed  of  all  his  state- 
ments and  explanation  or  qualification  of  his  admissions.^ 
Very  different  and  special  rules  have  been  established  as 
to  the  effect  and  use  of  the  defendant's  answer  for  purposes 
of  evidence,  both  on  behalf  of  the  complainant  and  of  him- 
self, in  equity  suits  for  relief  as  well  as  for  a  discovery. 
As  the  answer  in  ordinary  equity  suits  may  always  consist 
of  two  parts, — that  which  is  purely  matter  of  pleading,  con- 
sisting of  denials  of  the  plaintiff's  allegations,  and  affirma- 
tive averments  of  the  defendant's  case;  and  that  which  is 
strictly  matter  of  evidence,  consisting  of  answers  to  the 
interrogatories  contained  in  the  plaintiff's  bill, — it  is  plain 
that  this  subject  belongs  wholly  to  the  system  of  procedure, 
the  pleading  and  the  evidence,  prevailing  in  courts  of 
equity,  and  is  not  embraced  within  the  scope  of  the  present 
treatise.2 

§  208,  1  Fant  v.  Miller,  17  Gratt.  187;  Hart  v.  Freeman,  42  Ala.  567. 
Where  the  American  courts  have  assumed  the  jurisdiction  to  go  on  and 
give  final  relief  on  the  ground  of  the  application  to  them  for  discovery, 
although  the  relief  is  legal  in  its  nature,  and  could  be  adequately  obtained 
at  law,  the  same  rule  as  to  i;sing  the  answer  in  evidence  has  been  applied: 
Shotwell  v.  Smith,  20  N.  J.  Eq.  79 ;  Holmes  v.  Hohnes,  36  Vt.  525 ;  Lyons 
V.  Miller,  6  Gratt.  439,  52  Am.  Dec.  129. 

§  208,  2  See,  on  this  subject,  Adams's  Eq.  20-22 ;  Bartlett  v.  Gillard,  3 
Russ.  149,  156;  Freeman  v.  Tatham,  5  Hare,  329;  East  v.  East,  5  Hare, 
343;  East  India  Co.  v.  Donald,  9  Ves.  275;  Savage  v.  Brocksopp,  18  Ves. 
335;  McMahon  v.  Burehell,  2  Phill.  Ch.  127;  Glenn  v.  Randall,  2  Md.  Ch. 
220;  Fant  v.  Miller,  17  Gratt.  187;  Swift  v.  Dean,  6  Johns.  523;  Clason 


§  209  EQUITY   JURISPKUDENCB.  316 

§  209.  Modem  Statutory  Methods. — In  the  foregoing 
paragraphs  I  have  collected  the  rules  which  have  been 
settled  by  courts  possessing  the  equitable  jurisdiction,  and 
acting  in  conformity  with  the  principles  and  methods  of 
the  chancery  system  of  procedure,  both  concerning  the  use 
of  ''suits  for  discovery"  alone,  or  properly  so  called,  and 
concerning  the  subject-matter  of  the  discovery  of  facts,  and 
of  the  production  of  documents,  whether  such  discovery 
and  production  are  obtained  in  ''suits  for  discovery" 
proper,  or  in  ordinary  equitable  suits  for  relief  as  well  as 
discovery.  It  has  also  been  shown  that  the  same  doctrines 
in  relation  to  the  subject-matter  of  the  discovery  and  the 
production  of  documents  are  still  in  force  under  the  pro- 
cedure now  prevailing  in  England  and  in  some  of  our  states, 
which  has  abolished  the  old  modes  of  discovery,  either  by 
separate  suit  or  by  the  defendant's  answer  in  suits  for  re- 
lief, and  has  substituted  in  its  place  the  use  of  interroga- 
tories filed  in  the  progress  of  a  suit,  by  which  either  party 
may  probe  the  conscience  of  his  adversary,  and  obtain  evi- 
dence from  him  as  an  ordinary  proceeding  in  the  litiga- 
tion.i  In  many  of  the  states,  however,  where  a  discovery, 
as  an  ordinary  step  in  the  cause,  is  not  provided  for  other- 
wise than  by  the  oral  examination  of  the  opposite  party  as 
a  witness  at  the  trial  itself,  there  are  statutes  which  author- 
ize and  regulate  certain  special  applications  to  the  court 
by  motion  or  petition  for  a  preliminary  examination  of  the 
opposite  party,  in  order  to  obtain  facts  necessary  to  the 

V.  Morris,  10  Johns.  524;  Stafford  v.  Bryan,  1  Paige,  239;  Page  v.  Page, 
8  N.  H.  187;  Daniel  v.  Mitchell,  1  Story,  173;  Hughes  v.  Blake,  6  Wheat. 
453;  Union  Bank  v.  Geary,  5  Pet.  99;  Chance  v.  Teeple,  4  N.  J.  Eq.  173; 
Myers  v.  Kinzie,  26  111.  36;  White  v,  Hampton,  10  Iowa,  238;  Hart  v. 
Freeman,  42  Ala.  567;  Eaton's  Appeal,  66  Pa.  St.  483;  as  to  the  effect  of 
the  plaintiff's  waiver  of  an  answer  under  oath:  Sweet  v.  Parker,  22 
N.  J.  Eq.  453 ;  Tomlinson  v.  Lindley,  2  Ind.  569. 

§  209,  1  It  is  very  remarkable  that  this  simple,  direct,  and  efficacious 
mode  of  obtaining  evidence  to  be  used  on  the  trial  has  not  been  adopted 
as  an  ordinary  proceeding  in  the  progress  of  a  litigation  in  all  the  states 
where  the  reformed  system  of  procedure  prevails. 


317  THE    AUXILIARY   JURISDICTION.  §  209 

proper  framing  of  the  cause  of  action  or  defense  in  the 
applicant's  pleading,  or  to  compel  the  preliminary  produc- 
tion and  inspection  of  books  and  documents,  or  to  ac- 
complish some  other  similar  special  jDui'iDose.  As  these 
collateral  proceedings  are  wholly  regulated  by  the  statutes 
which  create  them,  their  discussion  belongs  to  books  pro- 
fessedly treating  of  practice,  and  does  not  come  within  the 
scope  of  the  present  work,  except  so  far  as  the  matters  of 
which  a  discovery  may  be  compelled,  and  those  which  are 
privileged  from  disclosure,  are  embraced  within  the  doc- 
trines hereinbefore  explained.  I  have,  however,  placed  in 
the  foot-note  some  of  the  more  important  decisions  inter- 
preting these  statutory  provisions.^  a 

§  209,  2  The  following  are  some  of  the  most  important  and  recent  deci- 
sions, which  will  put  the  reader  upon  the  track  of  other  and  earlier  au- 
thorities. It  wUl  be  seen  that  upon  all  matters  affecting  the  merits,  what 
disclosures  may  be  compelled,  materiality,  privilege,  etc.,  the  courts  uni- 
formly hold  that  these  statutory  proceedings  take  the  place  of  the  equity 
suit  for  a  discovery,  and  are  governed  by  substantially  the  same  rules. 
1.  Proceeding  for  the  examination  of  the  opposite  party:  Glenuy  v.  Sted- 
well,  51  How.  Pr.  321.  (The  plaintiff  in  a  pending  action  may  examine 
the  adverse  party  before  service  of  the  complaint,  and  for  the  purpose 
of  obtaining  facts  on  which  to  frame  a  complaint.  The  proceeding  is  in- 
tended to  take  the  place  of  the  equity  suit  for  a  discovery,  and  maj'  be 
used  whenever  and  for  whatever  purpose  a  discovery  could  be  made.) 
Plaintiff  may  examine  the  opposite  party  before  issue  is  joined :  Hadley 
V.  Fowler,  12  Abb.  Pr.,  N.  S.,  244;  Havemeyer  v.  Ingersoll.  12  Abb.  Pr.. 
N.  S.,  301;  McVickar  v.  Greenleaf,  1  Abb.  Pr.,  N.  S.,  452,  7  Rob.  (N.  Y.) 
657,  overruling  Bell  v.  Richmond,  4  Abb.  Pr.,  N.  S.,  44,  50  Barb.  571; 
as  to  what  defendant  may  be  compelled  to  answer,  see  Dambman  v. 
Butterfield,  4  Thoniii.  &  C.  542;  as  to  disclosure  tending  to  render  defend- 

§  209,    (a)   In  Ex  parte  Boyd,  105  the  Revised  Statutes  which  provides 

U.  S.  647,  it  was  held  that  the  stat-  that  "the  party  recovering  judgment 

utes   of    New   York   authorizing   the  in  any  common-law  cause  in  any  cir- 

examination   of   a   debtor  upon   pro-  cuit  or  district  court  shall  be  entitled 

ccedings   supplemental   to   execution  to  similar  remedies  upon  the  same, 

was   not   a   mere   statutory  interfer-  by  execution  or  otherwise,  to  reach 

ence  with  the  equitable  remedies  for  the  property  of  the  judgment  debtor, 

a   discovery,   and   that   consequently  as  are  now  provided  in  like   causes 

they  were   available   in   the   federal  by  the  laws  of  the  state." 
courts,   by   virtue   of  section   916   of 


§  210  EQUITY    JURISPRUDENCE.  318 

EXAMINATION   OF   WITNESSES. 

§210.a    This   Jurisdiction   Described.— While   the  first 

,  branch  of  the  auxiliary  jurisdiction  deals  with  the  matter 
of  obtaining  evidence  from  the  parties  themselves,  the 
second  branch  comprises  the  methods  of  examining  wit- 
nesses who  are  not  parties,  and  of  preserving  their  evidence 
for  future  use  at  the  trial  of  actions  at  law,  or  at  the  hear- 
ing of  suits  in  equity.  This  branch  of  the  auxiliary  juris- 
diction was  doubtless  established  in  aid  of  proceedings  at 
law,  although  its  methods  may  also  be  used  in  suits  strictly 
equitable.  Where  a  right  now  exists,  which  is  likely  to  be 
disputed  or  contested  at  some  future  time,  but  no  action  can 
yet  be  brought  for  the  purpose  of  establishing  it,  and  there 

ant  liable  for  penalties,  etc.,  see  United  States  v.  Hughes,  12  Blateh.  553. 
2.  Compelling  production  and  inspection  of  documents:  Merchants'  Nat. 
Bank  v.  State  Nat.  Bank,  3  Cliff.  201 ;  United  States  v.  Hughes,  12  Blatchf. 
553 ;  Livingston  v.  Curtis,  12  Hun,  121,  54  How.  Pr.  370,  oven-uling  Piatt  v. 
Piatt,  11  Abb.  Pr.,  N.  S.,  110;  Cutter  v.  Pool,  54  How.  Pr.  311;  New  Eng- 
land Iron  Co.  V.  New  York  Loan,  etc.,  Co.,  55  How.  Pr.  351 ;  Mott  v.  Con- 
sumers' lee  Co.,  2  Abb.  N.  C.  143,  52  How.  Pr.  148,  244;  Morgan  v.  Morgan, 
16  Abb.  Pr.,  N.  S.,  291 ;  Central  Nat.  Bank  v.  White,  37  N.  Y.  Super.  Ct. 
297;  Whitworth  v.  Erie  R.  R.,  37  N.  Y.  Super.  Ct.  437;  Holtz  v.  Schmidt, 
34  N.  Y.  Super.  Ct.  28;  Rice  v.  Ehele,  55  N.  Y.  518;  Thompson  v.  Erie 
R.  R.,  9  Abb.  Pr.,  N.  S.,  212,  No.  2,  9  Abb.  Pr.,  N.  S.,  230;  Williams 
Mower,  etc.,  Co.  v.  Raynor,  38  Wis.  132;  Noonan  v.  Orton,  28  Wis.  386; 
Whitman  v.  Weller,  39  Ind.  515;  O'Connor  v.  Tack,  2  Brewst.  407  (a  full 
and  instructive  case) ;  Esbach  v.  Lightner,  31  Md.  528.  3.  What  facts, 
etc.,  must  he  shown  in  the  application;  tvhat  the  order  must  contain: 
Cutter  V.  Pool,  54  How.  Pr.  311;  New  England  Iron  Co.  v.  New  York 
Loan,  etc.,  Co.,  55  How.  Pr.  351;  Mott  v.  Consumers'  Ice  Co.,  52  How. 
Pr.  148;  Central  Crosstown  R.  R.  v.  Twenty-third  St.  R.  R.,  53  How.  Pr. 
45;  Central  Nat.  Bank  v.  White,  37  N.  Y.  Super.  Ct.  297;  Whitworth  v. 
Erie  R.  R.,  37  N.  Y.  Super.  Ct.  437;  Holtz  v.  Schmidt,  34  N.  Y.  Super. 
Ct.  28;  Rice  v.  Ehele,  55  N.  Y.  518;  Hauseman  v.  Sterling,  61  Barb.  347; 
Phelps  V.  Piatt,  54  Barb.  557;  Thompson  v.  Erie  R.  R.,  9  Abb.  Pr.,  N.  S., 
212,  230;  Williams  Mower,  etc.,  Co.  v.  Raynor,  38  Wis.  132;  Whitman 
V.  Weller,  39  Ind.  515;  O'Connor  v.  Tack,  2  Brewst.  407;  Esbach  v. 
Lightner,  31  Md.  528.  4.  Other  points  of  practice:  Noonan  v.  Orton,  28 
Wis.  386 ;  Whitman  v.  Weller,  39  Ind.  515. 

§  210,  (a)  Sections  210  et  seq.  are      trie  Co.  v.  Superior  Court,  155  Cal. 
cited  in  San  Francisco  Gas  &  Elec-       30,  17  Ann.  Cas.  933,  99  Pac.  359. 


319  THE    AUXILIARY    JURISDICTION.  §  211 

is  danger  that  all  the  witnesses  will  have  died,  and  the  evi- 
dence by  which  alone  it  can  be  supported  will  have  dis- 
appeared before  that  time  arrives  at  which  an  action  can 
be  brought,  the  common  law  furnished  no  means  for  taking 
the  testimony  of  the  witnesses  in  anticipation.  To  prevent 
such  a  failure  of  justice,  the  auxiliary  jurisdiction  of  equity 
contrived  the  suit  for  perpetuating  the  testimony  of  wit- 
nesses under  such  circumstances.  Again,  where  a  suit  at 
law  has  actually  been  commenced,  but  has  not  reached  the 
time  for  trial,  and  there  is  danger  lest  the  evidence  of  cer- 
tain material  witnesses  should  be  lost,  from  their  extreme 
age,  or  from  their  being  sick,  or  from  their  being  about  to 
leave  the  country,  and  also  where  in  such  a  suit  mate- 
rial witnesses  are  actually  in  a  foreign  country,  so  that  their 
attendance  cannot  be  compelled,  nor  their  testimony  taken 
upon  deposition  by  any  modes  which  the  common  law  had 
furnished,  the  auxiliary  jurisdiction  supplied  the  defect  by 
means  of  a  suit  to  take  the  testimony  of  the  witnesses  de 
bene  esse  in  the  one  case,  and  a  suit  to  take  the  testimony 
of  the  witnesses  in  foreign  countries  upon  a  commission 
issued  out  of  chancery  in  the  other  case.^  As  these  three 
equitable  proceedings  were  very  cumbrous,  and  as  they 
have  been  practically  superseded,  even  if  not  expressly 
abolished,  both  in  England  and  in  most  of  the  states,  by 
more  simple,  direct,  and  efficacious  statutory  methods,  a 
very  brief  description  of  them  will  suffice. 

§  211.  I.  Suit  to  Perpetuate  Testimony.^ — A  suit  to  per- 
petuate testimony  could  only  be  maintained  where  the 
plaintiff  had  at  the  time  some  right  vested  or  contingent, 
to  which  the  testimony  would  relate;  but  such  right  could 
not  then  be  investigated,  established,  or  defended  by  an 
action  at  law.  As  the  foundation  of  the  suit,  the  plaintiff 
in  it,  not  yet  being  in  possession  of  the  property  in  question, 

§  210,  1  Jeremy's  Eq.  Jur.,  b.  2.  chap.  2,  pp.  270-280. 

§  211,   (a)   Cited  with  approval  iu  Winter  v.  Elmore,  88  Ala.  555,  7  South. 
250. 


§  211  EQUITY    JURISPRUDENCE.  320 

might  have  a  future  interest,  to  take  effect  only  upon  the 
happening  of  some  future  and  perhaps  contingent  event; 
or  he  might  have  an  immediate  present  interest,  being  in 
possession  of  the  property,  and  his  possession  not  yet  actu- 
ally disturbed,  but  threatened  with  disturbance  or  contest, 
by  the  defendant,  at  some  future  time;  in  either  of  which 
cases  he  could  immediately  bring  no  action  at  law  to  main- 
tain or  defend  his  right.i  As  to  the  nature  of  the  plain- 
tiff's interest,  it  might  be  in  real  or  in  personal  property, 
or  in  mere  personal  demands,  and  might  be  such  that  the 
testimony  sought  would  be  used  in  support  of  a  cause  of 
action  or  of  a  defense  at  law.2  But  as  the  law  stood  inde- 
pendent of  statute,  the  plaintiff  must  have  an  interest 
recognized  and  maintainable  by  the  law,  although  it  might 

§211,  1  Jeremy's  Eq,  Jur.  277;  Dursley  v.  Fitzhardinge,  6  Ves.  251; 
Angell  V.  Angell,  1  Sim.  &  St.  83.  Mr.  Justice  Story,  in  his  treatise  on 
Equity  Jurisprudence,  section  1513,  in  comparing  "bills  to  take  testimony 
de  bene  esse"  with  "bills  to  perpetuate  testimony,"  uses  the  following  lan- 
guage: "There  is  this  broad  distinction  between  bills  of  this  sort  [to 
examine  de  bene  esse']  and  bills  to  perpetuate  testimony,  that  the  latter  are 
and  can  be  brought  by  persons  only  who  are  in  possession  under  their 
title,  and  who  cannot  sue  at  law.  But  bills  to  take  testimony  de  bene  esse 
may  be  brought,  not  only  by  persons  in  possession,  but  by  persons  who 
are  out  of  possession,  in  aid  of  the  trial  at  law";  citing,  among  others, 
Jeremy's  Eq.  Jur.  277,  278.  This  statement  of  the  learned  commentator, 
restricting  bills  to  perpetuate  testimony  to  persons  who  are  in  possession 
under  their  title,  is  a  grave  error,  and  is  in  direct  variance  with  the 
authorities  cited  in  its  support,  and  with  the  general  doctrine  as  laid  down 
by  text-writers  and  courts.  Mr.  Jeremy,  at  the  page  cited  (p.  277),  says: 
"From  these  observations  it  will  appear  that  the  proceedings  for  the  ex- 
amination of  witnesses  de  bene  esse,  and  in  perpetuation  of  testimony, 
are  very  distinct.  The  court,  it  will  be  seen,  gives  aid  of  the  former  kind, 
.  .  .  and  of  the  latter  kind  where  the  party  applying  for  it  is  in  possession, 
but  anticipates  an  aggression  upon  his  enjoyment  at  a  future  time  when 
his  adversary  shall  have  gained  sufficient  advantage  by  delay,  or  is  out  of 
possession,  and  has,  at  present,  no  right  of  action,  but  designs  himself, 
when  such  a  right  shall  accrue,  to  commence  proceedings  at  law."  See 
also,  to  the  same  effect,  Adams's  Eq.  23. 

§  211,  2  Earl  of  Suffolk  v.  Green,  1  Atk.  450. 


321  THE    AUXILIARY    JUKISDICTION.  §  211 

be  very  small,  remote,  and  contingent.^  Therefore  if  the 
plaintiff  has  only  a  possibility  or  an  expectancy,  no  matter 
how  probable  and  actually  valuable,  he  could  not  maintain 
the  suit;  as  in  case  of  an  heir  at  law  during  the  life  of  his 
ancestor.'*  In  England  the  right  of  the  plaintiff  to  main- 
tain the  proceeding  with  respect  to  the  nature  of  his  inter- 
est has  been  enlarged  by  statute ;  which  embraces  those  who 
have  mere  possibilities,  as  well  as  those  who  have  actual 
interests.^  If  the  right,  interest,  or  claim  could  possibly 
be  made  the  subject  of  an  immediate  judicial  investigation 
in  an  action  brought  by  the  party  who  commences  a  suit  to 
perpetuate  testimony,  such  suit  would  for  that  reason  be 
dismissed ;  but  if  the  party  cannot  possibly  bring  the  matter 
before  a  court  so  that  his  right  or  claim  may  be  adjudicated 
upon  at  once,  the  equity  suit  to  perpetuate  the  testimony 
can  be  maintained.  The  reason  given  by  the  cases  is,  that 
the  only  evidence  in  support  of  the  plaintiff 's  rights  might 
be  lost  by  the  death  of  his  witnesses ;  and  the  adverse  party 
might  delay  to  move  in  the  matter  for  the  very  purpose  of 
obtaining  the  advantage  resulting  from  such  an  event. ^  ^ 

§  211,  3  Dursley  v.  Fitzhardinge,  6  Ves.  251 ;  Allan  v.  Allan,  15  Ves. 
134-136;  Earl  of  Belfast  v.  Chichester,  2  Jacob  &  W.  451,  452;  Towa- 
shend's  Peerage  Cases,  10  Clark  &  F.  289. 

§  211,  4  Even  though  the  ancestor  was  a  lunatic.  See  cases  in  last  note; 
also  Sackvill  v.  Aylesworth,  1  Vern.  105,  106.  And  see  In  re  Tayleur, 
L.  R.  6  Ch.  416. 

§  211,  5  Stat.  5  &  6  Vict.,  chap.  69,  which  enacts  that  "any  person  who 
would,  under  the  circumstances  alleged  by  him  to  exist,  become  entitled, 
upon  the  happening  of  any  future  event,  to  any  honor,  title,  dignity,  or 
office,  or  to  any  interest  or  estate  in  any  propertj'^,  real  or  personal,  the 
right  or  claim  to  which  cannot  by  him  be  brought  to  trial  before  the  hap- 
pening of  such  event,  shall  be  entitled  to  file  a  bill  to  perpetuate  any  tes- 
timony which  may  be  material  for  establishing  such  claim  or  right."  See 
Campbell  v.  Earl  of  Dalhousie,  L.  R.  1  H.  L.  S.  462. 

§  211,  6  Angell  v.  Angell,  1  Sim.  &  St.  83 ;  EUice  v.  Roupell,  32  Beav. 
299;  Earl  Spencer  v.  Peek,  L.  R.  3  Eq.  415. 

§  211,  (b)  See,  also,  West  v.  Lord      bill  to  perpetuate  testimony  is  rec- 
Sackville,    (1903)    2     Ch.    378.     The       ognized,   and  not   limited,  by  U.  S. 
1—21 


§  212  EQUITY   JURISPRUDENCE.  322 

The  mode  of  examining  the  witnesses  is  by  deposition  simi- 
lar to  that  pursued  in  other  equity  suits.  The  cause  does 
not  proceed  any  further  than  the  examination  of  the  wit- 
nesses ;  the  suit  is  then  really  at  an  end.  The  only  further 
step  is  the  ''publication  of  the  evidence,"  as  it  is  called  in 
the  chancery  practice,  by  which  the  parties  have  access  to^ 
and  become  entitled  to  use  the  testimony.  This  ''publica- 
tion" is  made  by  an  order  of  the  court;  but  such  an  order 
cannot  be  obtained  except  for  the  purpose  of  using  the 
testimony  in  some  action,  nor  can  it  be  obtained,  as  a  gen- 
eral rule,  even  for  that  purpose  until  after  the  death  of  the 
witnesses  whose  depositions  are  sought  to  be  used.  This 
latter  rule  can  only  be  evaded  on  very  special  grounds,  by 
showing  that  although  the  witnesses  are  still  living  their 
examination  in  the  action  is  morally  impossible.'^ 

§  212.  Statutory  Modes. — As  this  particular  instance  of 
the  auxiliary  jurisdiction  of  equity  is  wholly  based  upon 
the  mode  of  taking  the  testimony  of  witnesses  by  written 
depositions,  which  prevailed  in  the  original  chancery  prac- 
tice, it  would  seem  to  follow  as  a  necessary  result  that  the 
equitable  suit  to  perpetuate  testimony  has  been  abrogated 
in  all  those  American  states  where  the  reformed  procedure 
has  been  adopted  by  which  the  method  of  taking  testimony 
of  witnesses  in  the  form  of  written  depositions,  as  well  in 
equitable  suits  as  in  legal  actions,  is  abolished.  This  man- 
ner of  obtaining  the  evidence  being  no  longer  the  character- 

§  211,  7  Angell  v.  Angell,  1  Sim.  &  St.  83;  Morrison  v.  Arnold,  19  Ves. 
670 ;  Bamsdale  v.  Lowe,  2  Russ.  &  M.  142.  As  to  the  practice,  see  further, 
Att'y-Gen.  v,  Ray,  2  Hare,  518 ;  Beavan  v.  Carpenter,  11  Sim.  22 ;  Wright 
V.  Tatham,  2  Sim.  459.  It  has  been  held  that  the  testimony  thus  per- 
petuated may  be  used  in  the  court  of  a  foreign  country:  Morris  v.  Morris, 
2  PhiU.  Ch.  205. 

Eev.      Stats.,  §  866;      Westinghouse  y.  Booker,  20  Ga,  777,  780;  May  v. 

Machine  Co.  v.  Electric  Storage  Bat-  Armstrong,  3  J.  J.  Marsh.   (26  Ky.) 

tery  Co.,  170  Fed.  430,  25  L.  E.  A.  261,  20  Am.  Dec.  137;  Hall  v.  Stout, 

(N.  S.)   673,  95  C.  C.  A.  600,  revets-  4  Del.  Ch.  269,  272;  and  New  York 

ing  165  Fed.  992  (testimony  to  meet  &  Bait.  Coffee  Polishing  Co.  v.  New 

defendants'    threatened    suit   for  in-  York    Coffee    Polishing    Co.,    9    Fed. 

fringeraent  of  patent);  citing  Booker  578,  20  Blatchf.  174. 


323  THE    AUXILIARY    JURISDICTION.  §  213 

istic  of  any  class  of  suits  in  those  states,  the  ancient  exer- 
cise of  the  auxiliary  jurisdiction  for  preserving  evidence 
by  a  suit  would  seem  to  be  impossible.  In  the  other  states, 
also,  which  have  not  adopted  the  reformed  procedure,  the 
special  statutory  proceedings  for  the  perpetuation  of  testi- 
mony have  virtually  displaced  and  rendered  obsolete  the 
equitable  suit  for  that  purpose.^ 

§  213.  II.  Suits  to  Take  the  Testimony  of  Witnesses  de 
Bene  Esse,  and  of  Witnesses  in  a  Foreign  Country.^ — A  suit 
to  take  testimony  de  bene  esse  is  maintained  in  aid  of  a 
pending  action  at  law  to  examine  a  witness  who  is  very 
aged,  or  who  is  sick,  or  who  is  about  to  depart  from  the 
country,  or  a  person  who  is  the  only  witness  to  a  material 
fact  in  the  cause,  although  neither  aged  nor  sick ;  the  ground 
of  such  proceeding  being  the  evident  danger  lest  the  evi- 
dence should  be  entirely  lost  to  the  party  by  a  delay. ^ 
There  is  a  very  clear  line  of  distinction  between  this  suit 
and  that  to  perpetuate  testimony.  While  the  latter  could 
only  be  brought  by  a  party  who  had  no  present  immediate 
cause  of  action,  this  suit  to  take  testimony  de  bene  esse  can 
only  be  maintained  by  one  who  has  an  existing  cause  of 
action  or  defense,  and  while  the  action  of  law  is  pending.^ 

§  213,  1  Jeremy's  Eq.  Jur.  271-273 ;  Angell  v.  Angell,  1  Sim.  &  St.  83, 

92,  93 ;  Fitzluigh  v.  Lee,  Amb.  65 ;  Rowe  v.  ,  13  Ves.  261 ;  Cholmon- 

delay  v.  Orford,  4  Brown  Ch.  157;  Shirley  v.  Earl  Ferrers,  3  P.  Wms. 
77;  Pearson  v.  Ward,  1  Cox,  177;  Pricliard  v.  Gee,  5  Madd.  364.  Such 
an  examination  may  also  be  had,  under  like  circumstances,  in  a  pending 
equity  suit,  before  it  is  at  issue,  so  that  the  examination  can  take  place 
in  the  ordinary  manner.  See  Frere  v.  Green,  19  Ves.  320;  Cann  v.  Cann, 
1  P.  Wms.  567;  Hope  v.  Hope,  3  Beav.  317;  Mcintosh  v.  Great  West  R'y, 
1  Hare,  328. 

§213,  2  Angell  v.  Angell,  1  Sim.  &  St.  83;  but  Phillips  v.  Carew,  1 
P.  Wms.  117,  holds  that  the  action  at  law  need  not  yet  be  begun;  that  it 

§  212,  (a)  In  Winter  v.  Elmore,  88  reach    the    testimony    of    witnesses 

Ala.    555,   7    South.    250,    it   is    held  only,  and  not  of  parties, 

that  the  statutory  proceedings  which  §  213   (a)    Cited  with   approval  in 

take  the  place  of  suits  to  perpetuate  Winter    v.    Elmore,    88    Ala.    555,    7 

testimony,  and  to  take  testimony  de  South.   250. 
iene  esse,  are  intended,  like  them,  to 


§  §  214,  215  EQUITY    JURISPRUDENCE.  324 

After  the  depositions  are  completely  taken,  they  cannot  be 
read  as  evidence  at  the  trial,  unless  it  is  shown  that  the 
witness  is  dead,  or  is  beyond  the  jurisdiction,  or  is  too  phys- 
ically infirm,  or  is  otherwise  incapable  of  attending"  to 
testify  in  person.^ 

§  214.  The  suit  to  examine  witnesses  in  a  foreign  coun- 
try upon  a  commission  issued  for  that  purpose,  in  aid  of  a 
pending  action  at  law,  is  founded  upon  the  original  lack  of 
any  power  in  the  common-law  courts  to  grant  such  commis- 
sions. The  name  indicates  the  nature  and  extent  of  the 
proceeding.  It  is  in  fact  a  branch  or  modification  of  the 
suit  to  take  testimony  de  bene  esse,  and  is  governed  by  the 
rules  applicable  to  that  suit,  except  the  witnesses  in  foreign 
countries  to  be  examined  need  not  be  aged  nor  sick.  The 
inability  to  reach  them,  or  to  compel  their  personal  attend- 
ance by  any  legal  process,  is  the  ground  upon  which  the 
jurisdiction  rests. ^ 

§  215.  Statutory  Modes. — Both  of  these  modes  of  taking 
testimony  through  an  equitable  suit  have  become  entirely 
obsolete  throughout  the  United  States.  Ample  powers  were 
long  ago  conferred  by  statute  upon  the  various  courts  of 
law,  to  permit  and  direct  the  testimony  of  aged,  or  infirm, 
or  other  witnesses  to  be  taken  preliminary  to  the  trial  in 
any  pending  proceeding,  under  all  the  circumstances  which 
would  have  authorized  a  suit  to  take  the  testimony  de  bene 
esse,  and  also  to  permit  and  direct  the  issuing  of  commis- 
sions to  other  states  and  to  foreign  countries,  for  the  pur- 
may  be  only  contemplated.  This  ruling  was  sharply  criticised  and  con- 
demned by  Sir  John  Leach,  in  Angell  v.  Angell,  1  Sim.  &  St.  83,  and  its 
authority  shaken. 

§  213,  3  Harris  v.  Cotterell,  3  Mer.  680 ;  Gason  v.  Wordsworth,  2  Yes. 
Sr.  336;  Dew  v.  Clark,  1  Sim.  &  St.  108;  Webster  v.  Pawson.  Dick.  540. 

§  214,  1  Grinnell  v.  Cobbold,  4  Sim.  546 ;  Moodalay  v.  Morton,  1  Brown 
Ch.  469;  Angell  v.  AngeU,  1  Sim.  &  St.  83,  93;  Mendizabel  v.  Machado, 
2  Sim.  &  St.  483 ;  Thorpe  v.  Macauley,  5  Madd.  218,  231 ;  Devis  v.  Turn- 
bull,  6  Madd.  232. 


325  THE   AUXILIAEY   JUEISDICTION.  §  215 

pose  of  taking  the  testimony  of  absent  witnesses,  under  like 
circumstances.  These  statutory  methods,  being  more 
simple,  speedy,  and  efficacious,  have  wholly  superseded  this 
branch  of  the  auxiliary  jurisdiction  of  equity.^ 

§  215,  (a)  This  paragraph  is  cited  in  Becker  v.  Frederick  W.  Lipps  Co., 
(Md.),  101  Atl.  783. 


§  216  EQUITY   JUEISPEUDENCB.  326 


CHAPTER  SECOND. 

GENERAL    RULES    FOR    THE    GOVERNMENT    OF 
THE   JURISDICTION. 


SECTION   L 
INADEQUACY  OF  LEGAL  REMEDIES. 

ANAI.YSIS. 

§  216.     Questions  to  be  examined  stated. 

§  217.     Inadequacy  of  legal  remedies  is  the  very  foundation  of  the  con- 
current jurisdiction. 

§  218.     Is  only  the  occasion   for  the  rightful  exercise  of  the  exclusive 
jurisdiction. 

§219.     Operation  of  the  principle  upon  the  exclusive  jurisdiction;   does 
not  affect  the  first  branchy  which  deals  with  equitable  estates 
and  interest's. 
§§  220, 221.     Is   confined   to   the    second    branch,    which    deals   with   equitable 
remedies. 

§  222.    Summary   of  the   equity   jurisdiction   as   affected  by  the   inade- 
quacy of  remedies. 

§  216.  Questions  Stated. — ^Having  thus  described  the 
three  main  divisions  into  which  the  equitable  jurisdiction  of 
courts  clothed  with  chancery  powers  is  separated,  it  be- 
comes important  to  examine  with  more  fullness  some  of 
the  general  rules  which  govern  this  jurisdiction,  and  the 
courts  in  its  exercise.  It  is  especially  important  that  we 
should  determine  with  exactness  the  true  operation  and 
effect  of  the  principle,  so  constantly  quoted,  and  even  em- 
bodied in  statutory  legislation,  that  the  equitable  jurisdic- 
tion can  only  be  resorted  to  when  the  legal  remedies  are 
insufficient  and  inadequate.^  How  far  and  under  what  cir- 
cumstances is  this  principle  the  foundation  of  the  equitable 
jurisdiction,  the  essential  fact  upon  which  its  very  existence 
depends?  and  how  far  is  it  simply  a  rule — although  a  funda- 

§216    (a)    See,   also,   ante,  §§   132.    133. 


327  INADEQUACY    OF    LEGAL   EEMEDIES.  §§217,218 

mental  rule — regulating  and  controlling  the  proper  exer- 
cise of  that  jurisdiction?  I  purpose,  in  the  first  place,  to 
give  the  answer  to  those  questions. 

§  217.  Inadequacy  of  Legal  Remedies  the  Founda.tion 
of  the  Concurrent  Jurisdiction. — The  insufficiency  and  in- 
adequacy of  the  legal  remedies  to  meet  the  requirements  of 
justice  under  any  given  state  of  circumstances,  where  tlie 
primary  rights,  interests,  or  estates  of  the  litigant  parties 
to  be  enforced  or  maintained  are  wholly  legal,  constitute 
the  foundation  of  the  concurrent  jurisdiction  of  equity  to  in- 
terfere under  those  circumstances,  they  are  the  essential 
facts  upon  which  the  existence  of  that  jurisdiction  depends. 
Since  the  primary  rights,  interests,  or  estates  of  the  liti- 
gant parties  are  legal,  those  parties  are,  of  course,  entitled 
to  go  into  a  court  of  law  and  obtain  the  remedies  which  it 
can  furnish.  But  it  is  solely  because  these  legal  remedies 
are,  under  the  assumed  circumstances,  inadequate  to  do 
complete  justice,  by  reason  of  the  imperfection  of  the  judi- 
cial methods  adopted  by  the  law  courts,  that  the  courts  of 
equity  have  also  the  power  to  interfere  and  to  award,  in 
pursuance  of  their  own  judicial  methods,  remedies  which  are 
of  the  same  general  kind  as  those  granted  by  the  courts  of 
law  to  the  same  litigant  parties  under  the  same  circum- 
stances. ■  This  is  the  essential  element  of  the  concurrent 
jurisdiction;  its  very  existence  thus  depends  upon  the 
inadequacy  of  the  legal  remedies  given  to  the  litigant  par- 
ties, under  the  same  circumstances  upon  which  the  equity 
tribunal  bases  its  adjudication.  This  proposition  has  been 
sufficiently  explained  in  the  preceding  sections.^ 

§  218.  Is  the  Occasion  Only  of  the  Exclusive  Jurisdiction. 
There  is,  however,  a  radical  difference  between  the  opera- 
tion of  this  inadequacy  of  legal  remedies  upon  the 
concurrent  equitable  jurisdiction  and  upon  the  exclusive 
jurisdiction,  although  the  direct  results  of  the  operation 
in  both  cases  may  be  apparently  the  same;  and  it  is  the 

§217,  (a)  See  §§  139,  173,  176,  180. 


§  218  EQUITY    JURISPEUDENCE.  328 

neglect  to  observe  this  distinction  which  has  tended  more 
than  anything  else  to  involve  the  whole  subject  in  confu- 
sion. The  exclusive  equitable  jurisdiction,  or  the  power 
of  the  courts  to  adjudicate  upon  the  subject-matters  coming 
within  that  jurisdiction,  exists  independently  of  the  ade- 
quacy or  inadequacy  of  the  legal  remedies  obtainable  under 
the  circumstances  of  any  particular  case.  It  exists,  as  has 
been  shown  in  a  preceding  section,  from  one  or  the  other 
of  two  facts:  either,  first,  because  the  primary  rights,  in- 
terests, or  estates  of  the  complaining  party,  which  are  to 
be  enforced  or  protected,  are  equitable  in  their  nature,  and 
are  therefore  not  recognized  by  the  law  so  as  to  be  cog- 
nizable in  the  law  court;  or  second,  because  the  remedies 
asked  by  the  complaining  party  are  such  as  are  adminis- 
tered alone  by  courts  of  equity,  and  are  therefore  beyond 
the  competency  of  the  courts  of  law  to  grant.  Whenever 
either  of  these  two  facts  is  involved  in  the  circumstances  of 
a  judicial  controversy^,  the  jurisdiction  of  equity  over  the 
subject-matter  of  such  controversy  is,  and  from  the  nature 
of  the  case  must  be,  exclusive.  But  because  the  equitable 
jurisdiction  in  certain  kinds  of  circumstances  is  exclusive, 
it  does  not  follow  that  the  jurisdiction  can  be  properly  ex- 
ercised in  every  individual  case  involving  or  depending 
upon  such  circumstances.  The  power  of  a  tribunal  to  adjudi- 
cate upon  a  class  of  facts  to  which  a  certain  individual  case 
belongs  is  not  identical  with  the  due  and  proper  exercise 
of  that  power,  according  to  the  established  rules  of  juris- 
prudence, by  a  judgment  maintaining  the  alleged  right  and 
conferring  the  demanded  remedy.  This  proposition  is  self- 
evident,  is  a  mere  commonplace  truism;  and  yet  it  has  been 
ignored  in  much  that  has  been  said  concerning  the  equitable 
jurisdiction.  The  distinction  thus  stated  clearly  shows 
the  manner  in  which  the  inadequacy  of  legal  remedies  under 
a  given  condition  of  circumstances  operates  upon  and  af- 
fects the  exclusive  equitable  jurisdiction.  Such  inadequacy 
simply  furnishes  the  occasion  upon  which  much  of  the  ex- 
clusive jurisdiction  may  properly  be  resorted  to;  it  is  the 


329  INADEQUACY    OF    LEGAL    EEMEDIES.  §  219 

rule,  in  many  instances,  for  the  proper  use  of  the  exclusive 
jurisdiction  in  accordance  with  the  settled  doctrines  of 
equity  jurisprudence;  that  jurisdiction  can  only  be  duly 
and  reg-ularly  exercised,  in  many  instances,  by  an  affirma- 
tive adjudication  upon  the  alleged  rights  and  an  award  of 
equitable  remedies,  when  the  legal  remedies  obtainable 
under  the  same  facts  are  inadequate  to  promote  the  ends  of 
justice.  1* 

§  219.  Operation  of  the  Principle  upon  the  Exclusive 
Jurisdiction. — The  foregoing  statement  is  so  general  and 
vague  as  to  be  of  little  practical  benefit;  it  is  necessary, 
therefore,  to  define  the  principle  more  exactly,  and  to 
ascertain,  if  possible,  what  portions  of  the  exclusive  juris- 
diction thus  depend  for  their  due  and  proper  exercise  upon 
the  inadequacy  of  legal  remedies  and  the  insufficiency  of 
legal  methods.  The  exclusive  jurisdiction  consists,  as  has 
been  shown,  of  two  distinct  branches,  namely:  1.  "Wliere 
the  primary  rights,  interests,  or  estates  of  the  complaining 
parties  are  wholly  equitable;  and  2.  "Where  the  primary 
rights,  interests,  or  estates  are  legal,  but  the  remedies 
sought  and  obtained  are  wholly  equitable.  The  principle 
that  the  inadequacy  of  legal  remedies  furnishes  the  occa- 
sion for  a  resort  to  the  equitable  jurisdiction  and  the  rule 
for  its  proper  exercise  does  not  extend  to  the  first  branch 
or  division  of  the  exclusive  jurisdiction.  The  exercise  of 
the  power,  in  cases  belonging  to  this  first  branch,  to  adju- 
dicate upon,  maintain,  enforce,  or  protect  purely  equitable 
primary  rights,  interests,  or  estates  does  not  at  all  depend 
upon  any  insufficiency  or  inadequacy  of  legal  methods  and 
remedies,  but  solely  upon  the  fact  that  these  primary 
rights,  interests,  or  estates  are  wholly  equitable,  are  not 
recognized  by  the  law  nor  cognizable  by  the  courts  of  law, 

§  218,  1  Earl  of  Oxford's  Case,  1  Ch.  Rep.  1,  2  Lead.  Cas.  Eq.  1291 ; 
Southampton  Dock  Co.  v.  Southampton,  etc.,  Board,  L.  R.  11  Eq.  254; 
Rathbone  v.  Warren,  10  Johns.  587 ;  King  v.  Baldwin,  2  Johns.  Ch.  554. 

§218    (a)    See,   also,   ante,  §§  137,   138,  139,  note,  173. 


§  219  EQUITY    JURISPRUDENCE.  330 

and  there  is  therefore  no  other  mode  of  maintaining  and 
enforcing  them  except  by  the  courts  of  equity.  Wherever 
the  complaining  party  has  purely  equitable  primary  rights, 
interests,  or  estates  according  to  the  doctrines  and  prin- 
ciples of  the  equity  jurisprudence,  courts  having  equitable 
powers  do  and  must  exercise  their  exclusive  jurisdiction 
over  the  case,  entirely  irrespective  of  the  adequacy  or  in- 
adequacy of  legal  remedies,  for  the  plain  and  sufficient  rea- 
son that  the  litigant  party  cannot  possibly  obtain  any  legal 
remedies  under  the  circumstances ;  the  courts  of  law  do  not 
recognize  his  rights,  and  cannot  adjudicate  upon  nor  pro- 
tect his  interests  and  estates.  One  or  two  examples  will 
illustrate  the  correctness  and  the  generality  of  this  state- 
ment. In  the  case  of  a  trust  created  in  lands,  the  estate 
of  the  cestui  que  trust  is  purely  an  equitable  one,  of  which 
law  courts  refuse  to  take  cognizance.  He  is  therefore 
always  entitled  to  the  aid  of  a  court  of  equity  in  establish- 
ing, maintaining,  and  enforcing  his  estate  according  to  the 
nature  of  the  trust  and  the  doctrines  of  equity  jurispru- 
dence which  regulate  it,  and  to  obtain  such  remedies  as  the 
circumstances  may  require;  and  the  question  never  is 
asked,  nor  could  be  asked,  whether  the  remedies  given  him 
by  a  court  of  law  are  or  are  not  adequate,  since  all  legal 
remedies  are  to  him  impossible.^  ^  Again,  in  case  of  an 
equitable  assignment, — as,  for  example,  the  equitable  as- 
signment of  a  particular  fund  or  a  portion  thereof  by  means 
of  an  unaccepted  order  on  the  depositary, — the  interest  of 
the  assignee  in  the  fund  is  a  purely  equitable  ownership, 
and  he  is  always  entitled  to  maintain  an  action  in  a  court 

§  219,  1  It  will  be  understood,  of  course,  that  I  am  speaking  of  the 
equity  jurisdiction,  unaffected  by  any  particular  statutes.  There  may  be 
legislation  in  the  various  states  similar  to  the  statute  of  Georgia  already 
referred  to  [§  137,  note],  which  pei'mits  the  holder  of  a  "complete  equity" 
in  land,  e.  g.,  the  vendee  under  a  land  contract  who  has  paid  the  purchase 
price,  to  maintain  the  legal  action  of  ejectment,  in  order  to  recover  pos- 
session of  the  land. 

§219,  (a)  The  text  is  cited,  to  this  effect,  in  Warren  v  Warren,  75  N.  J. 
Eq.  415,  72  Atl.  960. 


331  INADEQUACY    OF    LEGAL,    REMEDIES.  §  219 

of  equity,  although  the  actual  relief  which  he  obtains  is 
legal  in  its  nature^  being  simply  a  recovery  of  money.  The 
proper  exercise  of  the  equitable  jurisdiction  under  such 
circumstances  cannot  depend  upon  any  inadequacy  of  legal 
remedies,  since  a  court  of  law  would  not  acknowledge  any 
right  or  interest  of  the  assignee. ^  A  well-settled  doctrine 
concerning  the  interference  with  actions  at  law  by  injunc- 
tion furnishes  a  further  illustration.  If  the  defendant  in 
an  action  at  law  has  an  equitable  interest  or  estate  in  the 
property,  or  an  equitable  right  in  the  subject-matter,  which, 
according  to  the  established  rules  of  equity  jurisprudence, 
should  prevent  a  recovery  against  him,  but  which,  being 
purely  equitable,  cannot  be  set  up  as  a  defense  in  the  pro- 
ceeding before  a  court  of  law,  he  can  invoke  the  exclusive 
jurisdiction  of  a  court  of  equity,  without  regard  to  any 
legal  defenses  which  he  may  have,  and  can  procure  the  ac- 
tion at  law  to  be  restrained,  and  his  own  equitable  interest 
to  be  established  and  enforced  by  means  of  appropriate 
equitable  reliefs,  because  such  equitable  interest  is  not 
recognized  by  the  law  nor  cognizable  by  the  legal  tribunals.^ 

§  219,  2  Rodick  V.  Gandell,  1  De  Gex,  M.  &  G.  763 ;  Ex  parte  Imbert, 
1  De  Gex  &  J.  152;  Mandeville  v.  Welch,  5  Wheat.  277,  286;  Gibson  v. 
Finley,  4  Md.  Ch.  75;  Wheatley  v.  Strobe,  12  Cal.  92,  98,  73  Am.  Dec. 
522;  Shaver  v.  West.  U.  T.  Co.,  57  N.  Y.  459,  464;  and  see  cases  cited 
ante,  under  §  169. 

§  219,  3  Earl  of  Oxford's  Case,  1  Ch.  Rep.  1,  2  Lead.  Cas.  Eq.  1291 ; 
Pyke  V.  Northwood,  1  Beav.  152;  Newlands  v.  Paynter,  4  Mylne  &  C. 
408;  Langton  v.  Horton,  3  Beav.  464,  1  Hare,  549;  East  India  Co.  v. 
Vincent,  2  Atk.  83;  Stiles  v.  Cowper,  3  Atk.  692;  Jackson  v.  Cator,  5 
Ves.  688;  Pilling  v.  Armitage,  12  Ves.  85;  Young  v.  Reynolds,  4  Md. 
375;  Ross  v.  Harper,  99  Mass.  175;  Fanning  v.  Dunham,  5  Johns.  Ch. 
122,  9  Am.  Dec.  283 ;  Edwards  v.  Varick,  1  Hoff.  Ch.  382,  11  Paige,  290, 

5  Denio,  664,  679;  Hibbard  v.  Eastman,  47  N.  H.  507,  93  Am.  Dec.  467; 
Miller  v.  Gaskins,  1  Smedes  &  M.  Ch.  524;  Smith  v.  Walker,  8  Smedes 

6  M.  131;  Wilson  v.  Leigh,  4  Ired.  Eq.  97;  Rees  v.  Berrington,  2  Ves. 
540;  Williams  v.  Price,  1  Sim.  &  St.  581;  Capel  v.  Butler,  2  Sim.  &  St. 
457;  Hayes  v.  Ward,  4  Johns.  Ch.  123,  8  Am.  Dec.  554;  Viele  v.  Hoag, 
24  Vt.  46;  Gallagher  v.  Roberts,  1  Wash.  C.  C.  156,  328;  Boardman  v. 
Florez,  37  Mo.  559. 


§  220  EQUITY   JURISPRUDENCE.  332 

Such  illustrations  might  be  indefinitely  multiplied.  They 
are,  however,  sufficient  to  show  that,  so  far  as  the  exclusive 
jurisdiction  of  equity  is  concerned  with  equitable  estates, 
interests,  and  primary  rights  alone  of  the  complaining 
party,  and  therefore  belongs  to  the  first  branch,  its  exer- 
cise does  not  depend  upon  any  consideration  of  the  ade- 
quacy or  inadequacy  of  legal  remedies,  but  depends  upon 
and  is  controlled  by  the  doctrines  and  rules  of  the  equity 
jurisprudence.  Such  jurisdiction  both  exists  and  is  exer- 
cised because  the  equitable  estates,  interests,  or  rights  of 
the  litigant  party  exist,  and  can  be  established,  protected, 
and  enforced  by  no  other  judicial  means  and  instrumen- 
talities. 

§  220.  It  is  otherwise  with  the  second  branch  of  the  ex- 
clusive jurisdiction,  as  above  described,  where  the  primary 
rights,  interests,  or  estates  of  the  complaining  party  are 
legal  in  their  nature,  but  the  remedies  sought  by  him  are 
entirely  equitable.  Where  a  person  has  a  legal  primary 
right,  he  is  not  always,  and  as  a  matter  of  course,  entitled 
to  go  into  a  court  of  equity  set  its  -jurisdiction  in  motion, 
and  obtain  the  equitable  remedies  appropriate  to  maintain 
or  protect  his  right.  Since  his  estates,  interests,  or  pri- 
mary rights  are  legal,  he  can  always,  in  case  of  their  in- 
fringement or  violation,  demand  and  recover  the  legal 
remedies  which  are  conferred  by  courts  of  law  under  the 
circumstances.  Whether  he  may  also  demand  and  recover 
the  proper  equitable  remedies  depends  upon  other  consid- 
erations. Although  the  jurisdiction  of  courts  of  equity  to 
grant  these  equitable  remedies  in  all  such  cases  is  exclu- 
sive, because  courts  of  law  (except  as  authorized  by 
modern  statutes)  have  no  power  to  grant  them,  yet  the 
courts  of  equity  will  not,  in  every  instance,  exercise  their 
jurisdiction.  The  proper  exercise  of  the  jurisdiction  in 
every  case  of  this  kind — but  not  the  jurisdiction  itself — 
depends  upon  the  question  whether  the  legal  remedies 
which  the  party  can  obtain  from  courts  of  law  upon  the 


'6'6'S  INADEQUACY    OF    LEGAL    REMEDIES.  §  220 

same  facts  and  circumstances  are  inadequate  to  meet  the 
ends  of  justice, — insufficient  to  confer  upon  him  all  the  re- 
lief to  which  he  is  justly  entitled.  If  the  legal  remedies 
administered  by  the  judicial  machinery  and  methods 
adopted  in  the  law  courts  are  fully  adequate  to  establish, 
protect,  and  enforce  the  party's  legal  estates,  interests, 
and  rights,  a  court  of  equity  will  not  interfere  in  his  behalf 
with  the  purely  remedial  branch  of  its  exclusive  jurisdic- 
tion; if  the  legal  remedies,  either  from  their  own  essen- 
tial nature  or  from  the  imperfection  of  the  legal  procedure, 
are  inadequate,  then  a  court  of  equity  will  interpose,  and 
do  complete  justice  by  granting  the  appropriate  equitable  • 
remedies  which  it  alone  is  competent  to  confer.^  Examples 
taken  from  the  decided  cases  in  which  the  various  kinds  of 
equitable  remedies  have  been  decreed  would  clearly  show 
that  the  dicta  of  judges  and  the  rules  laid  down  by  courts 
concerning  the  general  dependence  of  the  equitable  juris- 
diction upon  the  inadequacy  of  legal  remedies,  however 
conflicting  they  may  appear  to  be,  are  all  embraced  within 
and  rendered  harmonious  and  consistent  by  the  foregoing 
principle ;  they  all  become  particular  applications  and  illus- 
trations of  this  principle.^  A  few  such  instances  must 
suffice  for  explanation. 

§  220,  1  I  do  not  mean  that  in  their  dicta  and  statements  of  rules 
concerning  the  equitable  jurisdiction,  the  judges  have  always  consciously 
recognized  this  principle,  and  have  expressly  drawn  the  distinction  formu- 
lated in  the  text,  viz.,  that  while  the  inadequacy  of  legal  remedies  is  the 
fact  upon  which  the  concurrent  jurisdiction  exists,  it  simply  furnishes  the 
occasion  and  rule  for  the  exercise  of  the  exclusive  jurisdiction,  and  fur- 
thermore, that  the  application  of  this  latter  doctrine,  by  which  the  actual 
exercise  of  the  exclusive  jurisdiction  is  made  to  depend  upon  the  inade- 
quacy of  legal  remedies,  is  confined  to  one  branch  alone  of  that  jurisdiction, 
tlie  branch  which  is  concerned  with  the  granting  of  purely  equitable  reme- 
dies in  cases  where  the  primary  rights  of  the  complaining  party  are  legal, 

§  220,  (a)  The  text  is  quoted  in  (quieting  title) ;  and  cited  in  Bank- 
Brady  V.  Carteret  Realty  Co.,  70  ers'  Reserve  Life  Co.  v.  Omberson, 
N.  J.  Eq.  748,  118  Am.  St.  Rep.  778,  123  Minn.  285,  48  L.  E.  A.  (N.  S.) 
8  L.  R.  A.   (N.  S.)  866,  64  Atl.  1078  265,  143  N.  Wl  735. 


§  221  EQUITY   JURISPRUDENCE.  334 

§  221. a  The  well-settled  rules  concerning  the  restraint  of 
actions  at  law  by  means  of  injunction  furnish  a  great 
variety  of  examples.  When  the  defendant  in  an  action  at 
law  has  some  equitable  interest  or  right  which,  being  estab- 
lished according  to  the  doctrines  of  equity  jurisprudence, 
would  prevent  the  recovery  at  law  against  him,  then  a 
court  of  equity  will,  as  a  matter  of  course,  take  cognizance 
of  the  matter,  entertain  a  suit  on  his  behalf,  and  enjoin  the 
action  at  law,  in  order  that  it  may,  by  the  proper  equitable 
remedies,  maintain,  protect,  or  enforce  the  equitable  right 
held  by  such  party. i  But,  on  the  other  hand,  when  the 
.right  or  interest  on  which  the  defendant  in  the  action  at 
law  relies  is  legal  in  its  nature,  so  that  it  may  be  set  up  by 
way  of  defense  in  such  action,  and  may  be  adjudicated 
upon  by  the  court  of  law,  and  the  defendant  is  prevented 
or  hindered  from  thus  presenting  or  availing  himself  of 
his  legal  defense  by  means  of  some  collateral  or  extrinsic 
matter,  such  as  fraud,  duress,  mistake,  ignorance,  negli- 
gence, and  the  like,  or  the  defense  itself,  although  legal, 
involves  some  matter  of  equitable  cognizance,  such  as 
fraud,  mistake,  or  accident, — whether  a  court  of  equity 
will  then  interpose  in  aid  of  the  party,  will  take  cognizance 
of  the  controversy,  and  enjoin  the  action  at  law,  in  order 
that  the  legal  right  of  the  defendant  therein  may  be  ren- 
dered effective  so  as  to  prevent  a  recovery  against  him, 
always  depends  upon  the  question  whether  the  legal  rem- 
edies which  the  litigant  party,  under  the  circumstances  of 
the  case,  has  obtained  from  the  court  of  law,  or  might  have 

and  does  not  extend  to  the  other  branch,  which  deals  with  cases  where 
the  primary  rights  of  the  party  are  wholly  equitable.  But  I  claim  that 
the  principle  formulated  and  distinctions  thus  stated  in  the  text  are 
implicitly  and  necessarily  contained  in  and  established  by  the  judicial 
dicta  and  rules,  and  produce  an  orderly  and  consistent  system  out  of 
materials  which,  on  the  surface,  appear  to  be  unarranged  and  conflicting. 
§  221,  1  See  ante,  §  219. 

§  221,    (a)    This   paragraph   of  the       48  L,  E.  A.   (N.  S.)   265,  143  N.  W. 
text    is    cited    in    Bankers'    Eeserve       735. 
Life  Co.  V.  Omberson^  123  Minn.  285, 


335  INADEQUACY    OF    LEGAL    REMEDIES.  §  221 

obtained  by  the  use  of  due  dilig-enoe,  are  inadequate  to 
attain  tlie  ends  of  justice ;  in  otlier  words,  whether  the  re- 
fusal of  a  court  of  equity  to  interpose  would,  from  the 
insufficiency  of  the  legal  relief,  or  the  imperfection  of  the 
legal  procedure,  work  a  substantial  injustice  to  the  liti- 
gant party  under  all  the  facts  of  this  case. 2  In  both  these 
classes  of  cases  the  equitable  jurisdiction  is  exclusive,  since 
a  court  of  equity  alone  has  power  to  grant  the  remedy  of 
injunction ;  in  the  first,  the  jurisdiction  is  always  exercised 
as  a  matter  of  right,  in  the  second,  its  exercise  is  supple- 
mentary to  the  judicial  methods  existing  at  the  law,  and  is 
called  into  operation  only  when  those  methods  fail  to  give 
complete  relief.^  Additional  examples  may  be  found  in 
the  established  rules  concerning  the  use  of  the  injunction. 
The  jurisdiction  to  restrain  torts  to  property,  real  or  per- 
sonal, nuisances,  trespasses,  and  the  like,  by  injunction,  is 
exclusive,  although  the  estate  of  the  complaining  party 
which  is  interfered  with,  and  which  he  seeks  to  protect,  is 
legal,  and  he  is  entitled  to  the  legal  remedy  of  compen- 
satory damages,  yet  the  preventive  remedy  which  he  de- 
mands for  the  protection  of  his  property  is  wholly  equi- 
table, and  can  only  be  administered  by  courts  of  equity 

§  221,  2  Earl  of  Oxford's  Case,  1  Ch.  Rep.  1,  2  Lead.  Cas.  Eq.  1291 
Harrison  v.  Nettleship,  2  Mylne  &  K.  423;  Hardinge  v.  Webster,  1  Drew 
&  S.  101 ;  Simpson  v.  Lord  Howden,  3  Mylne  &  C.  108,  per  Lord  Gotten- 
ham;   Curtess  v.   Smalridge,  1  Eq.   Cas.   Abr.  377,  pi.  1;   Stephenson  v, 
Wilson,  2  Vern.  325;  Blaekhall  v.  Combs,  2  P.  Wms.  70;  Protheroe  v 
Forman,  2  Swanst.  227,  233 ;  Holworthy  v.  Mortloek,  1  Cox,  141 ;  Stevens 
V.   Praed,   2  Ves.   Jr.  519;  Ware  v.   Horwood,  14  Ves.  31;  Holmes  v 
Stateler,  57  111.  209;  Foster  v.  Wood,  6  Johns.  Ch.  89;  Marine  Ins.  Co 
V.   Hodgson,    7    Cranch,    332;    Hendrickson   v.   Hinckley,   17   How.   445 
Danaher  v.  Prentiss,  22  Wis.  311;  Forsythe  v.  McCreight,  10  Rich.  Eq 
308;  Wilsey  v.  Maynard,  21  Iowa,  107;  Day  v.  Cnmmings,  19  Vt.  496 
Vaughn  v.  Johnson,  9  N.  J.  Eq.  173;  Harrison  v.  Davenport,  2  Barb.  Ch 
77;  Pen-ine  v.  Striker,  7  Paige,  598;  Powell  v.  Watson,  6  Ired.  Eq.  94; 
Hood  V.  N.  R.  R.  Co.,  23  Conn.  609;  Clapp  v.  Ely,  10  N.  J.  Eq.  178. 

§  221,  3  It  is  for  this  reason  that  some  writers  have  classified  all  cases 
in  which  the  exercise  of  the  jurisdiction  depends  upon  the  inadequacy  of 
legal  remedies  under  the  head  of  the  "concurrent"  jurisdiction. 


§  221  EQUITY    JURISPRUDENCE.  336 

Tlie  general  doctrine  is  well  established  that  this  exclusive 
jurisdiction  will  not  be  exercised  in  any  case  for  the  pur- 
pose of  enjoining  trespasses  and  other  tortious  acts  to 
property,  at  the  suit  of  one  having  the  legal  estate,  un- 
less the  legal  remedy — compensatory  damages — is  inade- 
quate, under  the  circumstance  of  the  case,  to  confer  com- 
plete relief  upon  the  injured  party. ^  Another  illustration 
may  be  found  in  the  doctrines  concerning  the  remedy  of 
specific  performance  of  contracts.  The  jurisdiction  to  en- 
force performance  of  contracts  specifically  is  exclusive, 
for  the  remedy  itself  is  most  distinctively  equitable  and 
comjDletely  beyond  the  judicial  methods  of  the  law  courts; 
yet  the  complaining  party  has  a  legal  primary  right  cre- 
ated by  the  contract,  and  upon  its  violation  is  always  en- 
titled to  the  relief  afforded  by  an  action  at  law, — compen- 
satory damages, — even  "though  such  damages  are  -only 
nominal.  The  doctrine  is  fundamental  that  this  jurisdic- 
tion will  be  called  into  operation,  and  the  specific  perform- 
ance will  be  decreed  only  in  those  classes  of  cases  in  which, 
according  to  the  views  taken  by  the  equity  court,  the  legal 
remedy  of  compensatory  damages  is,  from  its  essential 
nature,  insufficient,  and  fails  to  do  complete  justice  between 

§  221,  4  Garth  v.  Cotton,  1  Ves.  Sr.  524,  546,  1  Dick.  183,  3  Atk.  751, 
1  Lead.  Cas.  Eq.  955,  987-1027;  Jesus  College  v.  Bloome,  3  Atk.  262, 
Amb.  54;  Van  Winkle  v.  Curtis,  3  N.  J.  Eq.  422;  Weigel  v.  Walsh,  45 
Mo.  560;  Musselman  v.  Marquis,  1  Bush,  463,  89  Am.  Dec  637;  Hicks 
V.  Compton,  18  Cal.  206 ;  Cause  v.  Perkins,  3  Jones  Eq.  177,  69  Am.  Dec. 
728;  Livingston  v.  Livingston,  6  Johns.  Ch.  497,  499,  500,  10  Am.  Dec. 
353,  and  eases  cited;  Hawley  v.  Clowes,  2  Johns.  Ch.  122;  De  Veney  v. 
Gallagher,  20  N.  J.  Eq.  33;  Coe  v.  Lake  Mfg.  Co.,  37  N.  H.  254,  and 
cases  cited;  Burnham  v.  Kempton,  44  N.  H.  78;  Gallagher  v.  Fayette 
Co.  R.  R.,  38  Pa.  St.  102;  Johnson  v.  Conn.  Bank,  21  Conn.  148,  157; 
Hardesty  v.  Taft,  23  Md.  512,  530,  87  Am.  Dec.  584;  Mechanics'  and 
Traders'  Bank  v.  De  Bolt,  1  Ohio  St.  591;  Eastman  v.  Amoskeag  Mfg. 
Co.,  47  N.  H.  71,  78;  Watson  v.  Sutherland,  5  Wall.  74,  78;  Parker  v. 
Winnipiseogee  Co.,  2  Black,  545,  550,  and  cases  cited;  Creely  v.  Bay 
State  Brick  Co.,  103  Mass.  514;  Morgan  v.  Palmer,  48  N.  H.  336;  Jenks 
V.  Williams,  115  Mass.  217;  Walker  v.  Zom,  50  Ga.  370;  Ziegler  v. 
Beasley,  44  Ga.  56. 


337  INADEQUACY    OF    LEGAL    REMEDIES.  §  221 

the  litigant  parties. ^  It  is  true  that  in  applying  this  doc- 
trine the  courts  of  equity  have  established  the  further  rule 
that  in  general  the  legal  remedy  of  damages  is  inadequate 
in  all  agreements  for  the  sale  or  letting  of  land,  or  of  any 
estate  therein;  and  therefore  in  such  class  of  contracts  the 
jurisdiction  is  always  exercised,  and  a  specific  perform- 
ance granted,  unless  prevented  by  other  and  independent 
equitable  considerations  which  directly  affect  the  rem- 
edial right  of  the  complaining  party;  but  this  result  does 
not  interfere  with  nor  modify  the  principle  which  is  under 
discussion.6  ^    Another  illustration  may  be  drawn   from 

§  221,  5  Pomeroy  on  Specific  Performance  of  Contracts,  §  §  9-27. 

§  221,  6  Various  and  sometimes  very  insufficient  reasons  have  been 
given  by  judges  for  the  foregoing  rule,  that  the  legal  remedy  is  always  to 
be  regarded  as  inadequate  in  contracts  relating  to  real  estate,  while  on  the 
other  hand  it  is  generally  to  be  regarded  as  adequate  in  contracts  relating 
to  personal  property.  The  distinction  stated  in  the  text,  and  which  I  am 
illustrating,  may  perhaps  furnish  a  complete  explanation.  In  an  agree- 
ment for  the  sale  of  land,  the  vendee,  in  addition  to  his  legal  primary 
right,  also  obtains,  in  pursuance  of  the  equitable  doctrine  of  conversion, 
an  equitable  estate  in  the  land, — an  estate  which  equity  regards  as  the 
real  beneficial  ownership,  burdened  simply  or  encumbered  with  the  lien 
of  the  unpaid  purchase  price.  Being  thus  the  holder  of  the  equitable 
estate  in  the  subject-matter,  the  equitable  owner  of  the  land,  he  is,  accord- 
ing to  the  doctrine  stated  in  the  text,  entitled  as  a  matter  of  course  to 
the  aid  of  a  court  of  equity  in  protecting  such  estate  and  in  clothing 
him  with  the  legal  title  by  means  of  a  conveyance  from  the  vendor.  The 
exercise  of  the  jurisdiction  does  not  then  depend,  as  it  does  when  the 
jurisdiction  is  merely  to  confer  equitable  relief,  upon  the  inadequacy  of 
The  legal  remedy,  but  is  rather  a  matter  of  equitable  right  in  the  vendee. 
The  same  rule  is  ajoplied  in  cases  of  similar  contracts  to  the  vendor,  partly 
because  he  acquires  an  equitable  ownership  of  the  purchase  price,  and 
partly  because  of  the  doctrine  of  mutuality.  In  the  contracts  relating  to 
personal  property,  the  equitable  principle  of  conversion  is  not  applied 
with  the  same  strictness  and  with   all  the  consequences   as  in  contracts 

§221,   (b)    The   text  is   quoted   in  v.    Canadian   Telegraphone   Co.,   103 

Maryland    Clay    Co.    v.    Simpers,    96  Me.  444,  69  Atl.  767.     Note  6  is  cited 

Md.    1,   53    Atl.    424,    and     cited    in  in  Matthea  v.  Wier   (Del.),  84  Atl. 

Christiansen  v.   Aldrich    (Mont.),   76  878. 
Pac.  1007;  and  in  Telegraphone  Corp. 
1—22 


§  221  EQUITY    JURISPRUDENCE.  338 

the  doctrines  concerning  tlie  cancellation  or  surrender  of 
written  instruments  on  the  ground  of  some  actual  fraud 
either  in  their  original  execution  or  in  their  subsequent 
use.  Such  remedy  is  entirely  equitable;  but  when  the  in- 
jured party  has  a  legal  estate  in  the  subject-matter  or  a 
legal  primary  right,  he  may  set  up  the  actual  fraud  as  a 
defense  in  an  action  at  law,  if  his  legal  title  is  thereby 
attacked,  or  a  recovery  is  thereby  sought  against  him  on 
the  instrument.  Whether,  under  these  circumstances,  and 
at  the  suit  of  a  party  holding  a  legal  interest  or  a  legal 
primary  right,  the  exclusive  jurisdiction  will  be  exercised 
for  the  purpose  of  protecting  his  estate  or  maintaining 
his  right,  by  decreeing  a  cancellation  or  a  surrender  of  the 
instrument  thus  atfected  by  fraud,  depends  upon  the  ques- 
tion whether  the  legal  remedies,  either  affirmative  or  de- 
fensive, open  to  the  party,  are  inadequate  to  promote  the 
ends  of  justice,  and  to  afford  him  complete  relief.'^  '^    In  the 

relating  to  real  estate.  The  further  rule,  that  the  granting  a  specific 
performance  in  all  cases  depends  upon  certain  equitable  grounds  affecting 
the  remedial  right  of  the  plaintiff,  or,  to  use  the  common  but  misleading 
expression,  that  it  depends  upon  the  judicial  discretion  of  the  court,  plainly 
does  not  interfere  with  this  view.  See  Pomeroy  on  Specific  Performance 
of  Contracts,  §§  35-43. 

§  221,  7  Hamilton  v.  Cummings,  1  Johns.  Ch.  517;  Bushnell  v.  Hart- 
ford, 4  Johns.  301;  Dale  v.  Roosevelt,  5  Johns.  174;  Mitler  v.  Mitler,  18 
N.  J.  Eq.  270,  19  N.  J.  Eq.  257,  457;  Town  of  Glastonbury  v.  McDonald, 
44  Vt.  453;  Bissell  v.  Beckwith,  33  Conn.  357;  Hall  v.  Whiston,  5  Allen, 
126;  Martin  v.  Graves,  5  Allen,  601;  Sherman  v.  Fitch,  98  Mass.  59; 
Ferguson  v.  Fisk,  28  Conn.  501;  McHenry  v.  Hazard,  45  N.  Y.  580.  In 
Hamilton  v.  Cummings,  1  Johns.  Ch.  517,  Chancellor  Kent  stated  the 
rule  concerning  the  exercise  of  the  jurisdiction  as  follows :  "Perhaj:)s  the 
cases  may  all  be  reconciled  on  the  general  principle  that  the  exercise  of 
this  power  is  to  be  regulated  by  sound  discretion,  as  the  circumstances  of 
the  individual  cases  may  dictate,  and  that  the  resort  to  equity,  to  be 
sustained,  must  be  expedient,  either  because  the  instrument  is  liable  to 
abuse  from  its  negotiable  character,  or  because  the  defense,  not  arising 
upon  its  face,  may  be  difficult  or  uncertain  at  law,  or  from  some  other 

§221,  (c)  The  text  is  cited  to  this  son,  134  Ala.  626,  33  South.  6;  Hosier 
effect  in  Druon  v.  Sullivan,  66  Vt.  v.  Walter,  17  Okl.  305,  87  Pac,  877. 
609,   30   Atl.   98;    Andrews   v.   Frier- 


339  INADEQUACY    OF    LEGAL    REMEDIES.  §  221 

same  manner,  where  a  bill  of  exchange,  promissory  note, 
or  other  negotial)le  security  has  been  obtained  by  fraud, 
conversion,  or  other  like  manner  which  would  create  a 
valid  defense  at  law  as  between  the  original  parties,  the 
acceptor,  maker,  or  other  party  apparently  liable  on  the 
instrument  may  invoke  this  jurisdiction  of  equity,  before 
the  maturity  of  the  paper,  against  the  holder,  and  procure 
an  injunction  restraining  him  from  making  any  transfer 
to  a  bona  fide  purchaser,  and  even  the  final  relief  of  a  can- 
cellation or  surrender;  because  in  such  a  case,  if  the  pres- 
ent unlawful  holder,  although  the  legal  defense  to  an  ac- 
tion by  him  would  be  perfect,  should  transfer  the  security 
to  a  bona  fide  purchaser,  such  legal  defense  would  be  cut 
off,  and  the  injured  party  would  be  without  adequate  and 
complete  remedy  in  a  court  of  law.<^  This  doctrine  ex- 
tends, under  similar  circumstances,  to  the  transfer  of  lands, 
goods,  and  things  in  action  to  a  bona  fide  purchaser,  where 
the  rights  and  equities  of  the  original  grantor,  vendor,  or 
owner  would  be  cut  off,  and  he  would  be  deprived  of  com- 

special  circumstances  peculiar  to  the  case,  and  rendering  a  resort  to  chan- 
cery proper  and  clear  of  all  suspicion  of  any  design  to  promote  expense 
and  litigation."  I  would  remark  that  the  statement  in  this  extract  that 
the  exercise  of  the  jurisdiction  is  a  matter  of  ''discretion"  in  the  court, 
wliieh  was  a  favorite  mode  of  expression  among  some  equity  judges  of  a 
former  day,  is  very  misleading,  no  matter  how  much  the  word  is  guarded 
by  adding  "sound"  or  "judicial."  No  part  of  the  regular  jurisdiction  of 
equity  can  depend  upon  the  "discretion"  of  the  judge,  if  the  word  is 
used  in  any  signification  properly  belonging  to  it.  In  Martin  v.  Graves,  5 
Allen,  601,  the  court  thus  stated  the  general  rule:  "Whenever  a  deed  or 
other  instrument  exists,  which  may  be  vexatiously  or  injuriously  used 
against  a  party  after  the  evidence  to  impeach  or  invalidate  it  is  lost,  or 
which  may  throw  a  cloud  of  suspicion  over  his  title  or  interest,  and  he 
cannot  immediately  protect  or  maintain  his  right  by  any  course  of  pro- 
ceedings at  law,  a  court  of  equity  will  afford  relief  by  directing  the  instru- 
ment to  be  delivered  up  and  canceled,  or  by  making  any  other  decree 
which  justice  and  the  rights  of  the  parties  may  require." 

§221,    (d)   The     text    is    cited     in  98  (cancellation  of  negotiable  instm- 

Louisville,  N.  A.   «&  C.  R.   R.   Co.  v.  ments    not   generally   granted   when 

Ohio  Val.  I.  &  C.  Co.,  57  Fed.  42,  45;  applied  for  after  their  maturity). 
Druon  v.  Sullivan,  66  Vt.  609,  30  Atl. 


§  222  EQUITY    JURISPRUDENCE.  340 

plete  relief  at  law,  as  against  the  bona  fide  transferee.^ 
Similar  illustrations  might  be  taken  from  the  settled  rules 
concerning  the  use  of  the  exclusive  jurisdiction  to  grant 
the  remedies  of  reformation,  re-execution,  interpleader, 
and  other  strictly  equitable  remedies,  in  order  to  maintain, 
protect,  and  enforce  estates,  interests,  and  primary  rights 
of  the  complaining  party,  which  are  legal  in  their  nature; 
but  the  foregoing  examples  are  sufficient  to  explain  the  dis- 
tinction, and  to  show  the  generality  of  the  principles  stated 
in  the  preceding  paragraph. 

§  222.  Summary  of  the  Jurisdiction  as  Affected  by  the 
Principle. — The  principle  which  has  been  thus  explained  in 
the  preceding  paragraphs  of  this  chapter,  and  which  is  not 
a  mere  speculative  theory,  but  is  fully  sustained  by  settled 
rules  taken  from  every  part  of  the  equity  jurisprudence, 
presents  the  entire  equitable  jurisdiction  in  the  form  of 
a  simple,  well-defined,  and  consistent  system,  the  result  of 
a  few  plain  and  harmonious  rules.  Laying  out  of  view  for 
the  present  that  special  branch  of  equity  which  is  called  the 
''auxiliary  jurisdiction,"  and  which  has  become  obsolete 
except  in  a  few  of  our  American  states,  the  administration 
of  the  equitable  jurisdiction,  and  the  resulting  doctrines 
which  make  up  the  equity  jurisprudence,  may  be  separated, 
according  to  a  natural  order,  into  four  distinct  classes, 
namely :  1.  Where  the  primary  right  or  interest  of  the  com- 
plaining party  which  has  been  invaded  is  purely  equi- 
table,— one  which  the  doctrines  of  equity  jurisprudence 
alone  create  and  recognize, — and  his  remedial  right  and 
the  remedies  which  he  obtains  are  also  wholly  equitable; 
for  example,  where  an  equitable  owner  of  land,  under  the 

§  221,  8  Hamilton  v.  Cnmmings,  1  Johns.  Ch.  517 ;  Delafield  v.  Illinois, 
26  Wend.  192;  Van  Doren  v.  ISIayor  of  New  York,  9  Paige,  389;  Cox 
V.  Clift,  2  N.  Y.  118;  Town  of  Glastonbury  v.  McDonald,  44  Vt.  453; 
Bank  of  Bellows  Falls  v.  Rutland,  etc,  R.  R.  Co.,  28  Vt.  470;  Franklin 
V.  Green,  2  Allen,  520 ;  Sherman  v.  Fitch,  9S  Mass.  59 ;  Poor  v.  Carleton, 
3  Sum.  70;  Ferguson  v.  Fisk,  28  Conn.  501;  Mitler  v.  Mitler,  18  N.  J.  Eq. 
270,  19  N.  J,  Eq.  257;  Peirsoll  v.  Elliott,  6  Pet.  95. 


341  INADEQUACY    OF    LEGAL,    REMEDIES.  §  222 

doctrines  of  trust  or  of  conversion,  procures  llie  declar- 
ative relief  establishing  his  estate,  and  the  relief  of  spe- 
cific performance  by  means  of  a  conveyance  of  the  legal 
title.  2.  Where  the  primary  right  or  interest  of  the  com- 
plaining party  is  in  like  manner  equitable,  and  the  rem- 
edies which  he  asks  and  receives  are  legal;  that  is,  are 
of  the  same  kind  as  those  conferred  by  courts  of  law;  for 
example,  where  the  equitable  owner  of  a  fund,  through  an 
equitable  assignment,  establishes  his  ownership  and  re- 
covers the  fund  by  a  final  judgment  which  is  simply  pecu- 
niary. 3.  Where  the  primary  right  or  interest  of  the 
complaining  party  is  legal, — one  which  is  created  by  the 
law,  and  cognizable  by  the  law  courts, — and  his  remedial 
right,  and  the  remedies  which  he  procures,  are  entirely 
equitable;  for  example,  where  the  legal  owner  of  property 
obtains  protection  to  his  possession  or  enjoyment  by  means 
of  injunction  against  tortious  acts,  or  against  wrongful 
proceedings  at  law,  or  protects  his  title  from  disturbance, 
or  himself  from  wrongful  demands,  by  means  of  the  rem- 
edy of  cancellation,  and  the  like.  4.  Where  the  primary 
right  or  interest  of  the  complaining  party  is  legal,  recog- 
nized and  maintainable  by  the  law  courts,  and  the  remedies 
which  he  obtains  are  also  legal, — of  the  same  kind  as  those 
administered  and  conferred  by  the  courts  of  law, — recov- 
eries of  money,  or  of  specific  lands  or  chattels;  for 
example,  where  a  surety  sues  his  principal,  under  his  right 
of  exoneration,  to  recover  back  the  money  paid  out  on 
behalf  of  such  principal,  or  sues  his  co-surety  to  recover 
money,  under  his  right  of  contribution ;  or  where  an  owner 
in  common  of  land  by  a  legal  estate  therein  recovers  his 
own  specific  portion  by  a  partition,  and  the  like.  All  pos- 
sible cases  of  equity  may  be  referred  to  one  or  the  other 
of  these  four  divisions.  The  first  three  belong  to  the 
"exclusive"  jurisdiction;  the  fourth  constitutes  the  ''con- 
current" jurisdiction.  Furthermore,  in  the  first  and 
second,  the  jurisdiction  is  not  only  exclusive,  but  is  exer- 
cised as  a  matter  of  right  in  behalf  of  the  complaining 


§  223  EQUITY   JURISPEUDENCE.  342 

party  whenever  he  has  an  equitable  estate,  interest,  or 
primary  right,  according  to  the  doctrines  of  equity  juris- 
prudence. In  the  third  division,  although  the  jurisdiction 
always  exists  and  is  exclusive,  it  is  not  exercised  on  behalf 
of  the  complaining  party  as  a  matter  of  right  in  him;  its 
proper  exercise  depends  upon  the  inadequac}^  of  the  legal 
remedies  which  he  might  obtain  to  do  him  complete  jus- 
tice. Finally,  in  the  fourth  division,  the  very  existence 
as  well  as  the  exercise  of  the  jurisdiction,  being  concurrent, 
depends  upon  the  inadequacy  of  the  remedies  which  the 
party  could  obtain  from  a  court  of  law,  owing  partly  to  the 
form  of  those  remedies  themselves,  and  partly  to  the  im- 
perfection of  the  legal  mode  of  procedure. 


SECTION  11. 
DISCOVERY  AS  A  SOURCE  OR  OCCASION  OF  JURISDICTION. 

ANALYSIS. 

§  223.  General  doctrine  as  to  discovery  as  a  source  of  eoneurrent  and 

an  occasion  for  exclusive  jurisdiction. 

§§  224,  225.  Early  English  rule. 

§  226.  Present  English  rule. 

§§  227-229.  Broad  rule  established  in  some  American  states. 

§  229.  The  limitations  of  this  rule. 

§  230.  The  true  extent  and  meaning  of  this  rule  examined. 

§  223.  General  Doctrine.^ — It  has  already  been  shown 
that,  under  the  general  jurisdiction  of  equity,  a  suit  of  dis- 
covery alone  without  relief  might  be  maintained  in  order 
to  procure  admissions  from  the  defendant  to  be  used  on 

§  223,   (a)   This  and  the  following  This  paragraph  is  cited  in  Nixon 

sections  are  cited  in  Yates  v.   Stu-  v.  Clear  Creek  Lumber  Co.,  150  Ala. 

art's  Adm'r,  39  W.  Va.  124,  19  S.  E.  602,    9    L.    R.    A.    (N.    S.)    1255,    43 

423;  Collier  v.  Collier  (N.  J.  Eq.),  33  South.  805 j  Daab  v.  New  York  C.  & 

Atl.   193;  In  Re  Beckwith,  203  Fed.  H.   E.  E.   Co.,   70   N.  J.   Eq.   489,  62 

45,     121     C.    C.    A.   381;     Griesa    v.  Atl.   449    (Stevenson,   V.   C);    State 

Mutual  Life  Ins.  Co.,  169  Fed.  509,  v.  Chicago  &  N.  W.  R.  Co.,  132  Wis. 

94  C.  C.  A.  035,  reversing  156  Fed.  345,  112  N.  W.  515. 
398. 


343  DISCOVEEY  AS  A  SOUECE  OF  JURISDICTION.  §  224 

the  trial  of  an  action  at  law  between  the  same  parties ;  and 
that  in  every  equitable  suit  brought  for  any  purpose  of 
relief  over  which  a  court  of  equity  has  jurisdiction,  the 
plaintiff  may  make  his  pleading  a  means  of  discovery,  and 
may  compel  the  defendant  to  disclose  facts  within  his 
knowledge  material  to  the  issue,  which  can  be  used  as  evi- 
dence on  the  hearing.  In  addition,  however,  to  these 
original  and  strictly  proper  functions  of  discovery,  the  doc- 
trine has  been  established  in  many  of  the  American  states, 
and  to  a  very  limited  and  partial  extent  in  England,  that 
discovery  itself  is,  under  certain  circumstances,  an  inde- 
pendent source  or  foundation  of  the  equitable  jurisdiction 
to  adjudicate  upon  matters  and  to  award  reliefs  which  are 
otherwise  purely  legal.  In  other  words,  that,  under  cer- 
tain circumstances,  where  the  plaintiff  has  asked  and  ob- 
tained a  discovery,  the  court  of  equity  may  go  on  and 
decide  the  whole  issue,  and,  grant  the  requisite  remedies, 
although  the  subject-matter  of  the  controversy  and  the 
primary  rights  and  interests  of  the  party  are  wholly  legal 
in  their  nature,  and  the  remedies  conferred  are  of  such  a 
kind  as  a  court  of  law  can  administer.  A  fortiori,  then, 
may  discovery  be  a  proper  occasion  for  exercising  the 
jurisdiction  in  cases  belonging  to  the  exclusive  jurisdiction, 
where  an  equitable  remedy  is  needed  in  support  of  a  legal 
right  or  interest.  This  doctrine  has,  of  course,  become 
obsolete  wherever  the  auxiliary  suit  for  a  discovery  has 
itself  been  abolished;  but  since  the  doctrine  prevailed  in 
some  states  which  still  retain  the  separate  equity  jurisdic- 
tion, and  the  ancillary  method  of  discovery  as  an  incident 
thereof,  some  discussion  of  it  seems  to  be  necessary. 

§  224.  Early  English  Rule. — The  earlier  English  cases 
fail  to  establish  any  rule,  and  leave  the  matter  in  a  condi- 
tion of  uncertainty.  There  are  dicta  of  eminent  judges  and 
some  decisions  which  undoubtedly  go  to  the  length  of  hold- 
ing, as  a  general  proposition,  that  wherever  a  party  is  en- 
titled to  and  obtains  a  discovery  in  a  suit  brought  directly 
and  primarily  for  that  purpose,  the  court  of  equity  will  go 


§  224  EQUITY    JURISPRUDENCE.  344 

on  and  decide  the  issues  and  grant  the  requisite  relief, 
although  the  subject-matter  of  the  controversy  and  the  pri- 
mary rights  involved  and  the  reliefs  conferred  are  not 
otherwise  within  even  the  concurrent  equitable  jurisdiction, 
but  are  cognizable  by  the  courts  of  law,  and  the  legal  rem- 
edies obtainable  in  the  particular  case  are  adequate.  This 
conclusion  is  said  to  result  from  the  doctrine  that  when  a 
court  of  equity  has  obtained  jurisdiction  of  a  cause  for  any 
purpose,  it  will  go  on  and  determine  the  entire  matters  in 
dispute,  in  order  to  avoid  a  multiplicity  of  suits. ^  These 
expressions  of  judicial  opinion  are  certainly  very  loose, 
and  unless  carefully  limited,  would  extend  the  equitable 
jurisdiction  far  beyond  its  legitimate  boundaries.  The 
doctrine  has  therefore  been  stated  in  a  much  more  guarded 
and  restricted  manner.  An  early  treatise  of  high  author- 
ity, after  admitting  the  impossibility  of  extracting  a  more 
definite  rule  from  the  conflicting  decision,  says:  ''The 
court,  having  acquired  cognizance  of  the  suit  for  the  pur- 
pose of  discovery,  will  entertain  it  for  the  purpose  of  re- 
lief, in  most  cases  of  fraud,  account,  accident,  and  mis- 
take. "2     Later  decisions  have  been  still  more  guarded, 

§  224,  1  The  earlier  English  cases  and  dicta  are  by  no  means  unanimous 
in  supporting  this  conclusion;  some  of  them  are  directly  opposed  to  it, 
and  there  is  an  irreconcilable  conflict  among  them :  See  Adiey  v.  Whit- 
stable,  17  Ves.  329,  per  Lord  Eldon;  Ryle  v.  Haggle,  1  Jacob  &  W.  234, 
236,  237,  per  Sir  Thomas  Plumer;  McKenzie  v.  Johnston,  4  Madd.  373, 
per  Sir  John  Leach;  Parker  v.  Dee,  2  Cas.  Ch.  200,  201,  per  Lord  Not- 
tingham; Jesus  College  v.  Bloom,  3  Atk.  262,  263,  Amb.  54;  Geast  v. 
Barker,  2  Brown  Ch.  61;  Duke  of  Leeds  v.  New  Radnor,  2  Brown  Ch.  388, 
519;  Bishop  of  Winchester  v.  Knight,  1  P.  Wms.  406;  Kemp  v.  Pryor, 
7  Ves.  248,  249,  per  Lord  Eldon. 

§  224,  2  Fonblanque's  Equity,  b.  1,  chap.  1,  §  3,  note  /;  "The  concur- 
rence of  jurisdiction  may,  in  the  gi'eater  number  of  cases  in  which  it  is 
exercised,  be  justified  by  the  propriety  of  preventing  a  multiplicity  of 
suits ;  for  as  the  mode  of  proceeding  in  courts  of  law  requires  the  plaintiff 
to  establish  his  case  without  enabling  him  to  draw  the  necessary  evidence 
from  the  examination  of  the  defendant,  justice  could  never  be  attained 
at  law  in  those  cases  where  the  principal  facts  to  be  proved  by  one  party 
are  confined  to  the  knowledge  of  the  other  party.     In  such  cases,  there- 


345  DISCOVERY  AS  A  SOURCE  OF  JURISDICTION.  §  224 

and  seem  to  reject  discovery  as  a  distinct  and  independent 
source  or  foundation  of  the  equitable  jurisdiction  in  any 
cases ;  that  is,  to  deny  that  relief  would  be  granted  merely 
as  a  consequence  of  discovery  in  any  case  which  did  not 
otherwise  come  within  some  recognized  branch  of  the  equi- 
table jurisdiction,  either  exclusive  or  concurrent.^ 

fore,  it  becomes  necessary  for  the  party  wanting  such  evidence  to  resort 
to  the  extraordinary  powers  of  a  court  of  equity,  which  will  compel  the 
necessary  discovery;  and  the  court,  having  acquired  cognizance  of  the 
suit  for  the  purpose  of  discovery,  will  entertain  it  for  the  purpose  of 
relief  in  most  cases  of  fraud,  account,  accident,  and  mistake." 

§  224,  3  Thus  in  Pearce  v.  Creswick,  2  Hare,  293,  per  Wigram,  V.  C. : 
"The  first  proposition  relied  upon  by  the  plaintii3f  in  support  of  the  equity 
of  his  bill  was  this,  that  the  case  was  one  in  which  the  right  to  discovery 
would  carry  with  it  the  right  to  relief.  And  undoubtedly  dicta  are  to  be 
met  with  tending  directly  to  the  conclusion  that  the  right  to  discovery  may 
entitle  a  plaintiff  to  relief  also.  In  Adley  v.  The  Whitstable  Co.,  17  Ves. 
329,  Lord  Eldon  says:  'There  is  no  mode  of  ascertaining  what  is  due 
except  an  account  in  a  court  of  equity;  but,  it  is  said,  the  party  may 
have  discovery,  and  then  go  to  law.  The  answer  to  that  is,  that  the  right 
to  the  discovery  carries  along  with  it  the  right  to  relief  in  equity.'  In 
Ryle  V.  Haggle,  1  Jacob  &  W.  236,  Sir  Thomas  Plumer  said :  'When  it  is 
admitted  that  a  party  comes  here  properly  for  the  discovery,  the  court 
is  never  disposed  to  occasion  a  multiplicity  of  suits  by  making  him  go 
to  a  court  of  law  for  the  relief.'  And  in  McKenzie  v.  Johnston,  4  Madd. 
373,  Sir.  John  Leach  says:  'The  plaintiff  can  only  learn  from  this  dis- 
covery of  the  defendants  how  they  have  acted  in  the  execution  of  their 
agency,  and  it  would  be  most  unreasonable  that  he  should  pay  them  for 
that  discovery,  if  it  turned  out  that  they  had  abused  his  confidence;  yet 
such  must  be  the  case  if  a  bill  for  relief  will  not  lie.'  Now,  in  a  case  in 
which  I  think  that  justice  requires  the  court,  if  possible,  to  find  an  equity 
in  this  bill,  to  enable  it,  once  for  all,  to  decide  the  question  between  the 
parties,  I  should  reluctantly  deprive  the  plaintiff  of  any  remedy  to  which 
the  dicta  I  have  referred  to  may  entitle  him.  But,  I  confess,  the  argu- 
ments founded  upon  these  dicta  appear  to  me  to  be  exposed  to  the  objection 
of  proving  far  too  much.  They  can  only  be  reconciled  with  the  ordinary 
practice  of  the  court,  by  understanding  them  as  having  been  uttered  with 
reference  in  each  case  to  the  subject-matter  to  which  they  were  applied, 
and  not  as  laying  down  any  abstract  proposition  so  wide  as  the  plaintiff's 
argument  requires.  I  think  this  part  of  the  plaintiff's  case  cannot  be 
stated  more  highly  in  his  favor  than  this,  that  the  necessity  a  part}'  may 
be   under   (from  the  very  nature  of  a  given  transaction)    to  come  into 


§  225  EQUITY   JURISPRUDENCE.  346 

§  225.a  If  it  be  generally  true  that  a  court  "having  ac- 
quired jurisdiction  of  a  suit  for  the  purpose  of  discovery 
will  entertain  it  for  purpose  of  relief  in  most  cases  of  fraud, 
account,  accident,  and  mistake,"  what  is  the  real  signifi- 
cance of  this  proposition?  It  does  not  assert  that  mere 
discovery  is  an  independent  source  of  jurisdiction  in  any 
case  ivhere  it  would  not  otlierivise  exist;  it  simply  regards 
a  discovery  obtained  as  the  proper  occasion  for  exercising 
the  jurisdiction,  sometimes  exclusive,  sometimes  concur- 
rent, in  certain  classes  of  cases  where  such  jurisdiction  al- 
ready exists, — that  is,  may  be  exercised, — in  pursuance  of 
settled  doctrines  of  the  equity  jurisprudence.  In  many 
cases  of  fraud,  mistake,  or  accident,  the  exclusive  jurisdic- 
tion exists  to  award  purely  equitable  remedies  in  support 
of  legal  interests  and  primary  rights  of  the  plaintiff;  and 
such  jurisdiction  will  be  exercised  in  these  cases,  accord- 
ing to  the  principle  heretofore  explained,  whenever  the 
legal  remedies  obtainable  therein  are  inadequate.  Also, 
in  many  cases  of  fraud,  mistake,  accident,  or  account,  the 
concurrent  jurisdiction  exists  to  award  remedies  of  a  kind 
which  are  purely  legal,  such  as  pecuniary  recoveries,  in 
support  of  the  legal  interests  and  primary  rights  of  the 
plaintiff,  whenever  the  remedies  obtainable  from  a  court 
of  law  are  inadequate,  through  the  imperfection  of  the 
legal  modes  of  procedure.  Now,  the  proposition  quoted 
above  simply  asserts  that  in  all  cases  falling  within  either 
of  the  two  classes  last  mentioned,  in  all  such  cases  belong- 
ing either  to  the  exclusive  or  to  the  concurrent  jurisdic- 
tion, the  very  fact  that  a  discovery  is  necessary  for  the 

equity  for  discovery,  is  a  circumstance  to  be  regarded  in  deciding  upon 
the  distinct  and  independent  question  of  equitable  jurisdiction;  further 
than  this  I  have  not  been  able  to  follow  this  branch  of  the  plaintiff's 
argument."  And  see  Mitchell  v.  Greene,  10  Met.  101;  Pease  v.  Pease, 
8  Met.  395. 

§  225,   (a)   This  paragrapt  is  cited  GOl,   117  Pac.   767    (account)  ;   State 

in   Mutual   Life   Ins.   Co.   v.    Griesa,  v.  Chicago  &  N.  W.  R.  Co.,  132  Wis. 

156     Fed.     398;     California     Raisin  315,  112  N.  W.  515. 
Growers'    Assn.   v.    Abbott,    160    Cal. 


347  DISCOVERY  AS  A  SOURCE  OF  JURISDICTION.  §  226 

plaintiff,  and  is  obtained  by  him,  shows  of  itself,  and  in- 
dependent of  any  other  considerations,  that  the  case  is  one 
in  which  the  ordinary  remedies  at  law  are  inadequate, 
and  therefore  that  the  equitable  jurisdiction  is  proper  in 
such  case.  In  other  words,  the  discovery  obtained  in  such 
cases  belonging  to  the  exclusive  jurisdiction  is  of  itself 
a  fact  showing  that  the  legal  remedies  are  inadequate  to 
do  complete  justice  to  the  parties  therein,  and  that  the 
exercise  of  the  exclusive  jurisdiction,  by  conferring  equi- 
table remedies,  is  both  proper  and  necessary.  Also,  the 
discovery  obtained  in  such  cases  belonging  to  the  concur- 
rent jurisdiction  is  of  itself  a  fact  showing  that  the  reme- 
dies recoverable  at  law  by  the  parties  therein  are  inade- 
quate, and  that  the  concurrent  equitable  jurisdiction  of 
the  controversy  exists,  and  should  be  enforced  by  decid- 
ing all  the  issues  and  awarding  the  appropriate  reliefs,  al- 
though they  may  be  of  the  same  kind  as  those  conferred  at 
law.  This  view,  as  it  seems  to  me,  removes  all  conflict  ap- 
pearing in  the  English  decisions  and  dicta,  and  brings  the 
effect  of  discovery  into  a  complete  harmony  with  the 
general  principles  concerning  jurisdiction.  It  rejects  the 
notion  that  the  mere  fact  of  discovery  has  any  power  to  en- 
large the  equitable  jurisdiction,  or  to  extend  that  jurisdic- 
tion, whether  exclusive  or  concurrent,  to  any  cases  in  which 
it  does  not  otherwise  exist;  on  the  other  hand,  it  admits 
that,  in  cases  otherwise  belonging  either  to  the  exclusive  or 
the  concurrent  jurisdiction,  a  discovery  obtained  may  be 
the  determining  fact  upon  which  the  proper  exercise  of  that 
jurisdiction  depends, — the  fact  which,  without  any  other 
accident,  renders  the  legal  remedies  inadequate,  and  thus 
sets  in  motion  the  judicial  machinery  of  equity. 

§  226.  Present  English  Rule.  —  The  conclusion  thus 
reached  is  fully  sustained  by  the  more  modem  English 
decisions.  The  rule  fully  settled  by  the  English  courts, 
]:efore  the  auxiliary  jurisdiction  over  discovery  was  finally 
abolished  by  the  supreme  court  of  judicature  act,i  was,  that 

§  226,  1  See  ante,  §  193. 


§  227  EQUITY    JURISPRUDENCE.  348 

if  the  controversy  and  the  issues  involved  in  it  are  not 
otherwise  within  the  equitable  jurisdiction,  either  exclusive 
or  concurrent,  and  the  legal  remedies  obtaina1)le  in  the  case 
are  adequate,  a  bill  properly  for  discovery  without  any  re- 
lief, in  aid  of  a  pending-  or  expected  action  at  law,  can  alone 
be  maintained;  and  if  in  such  a  bill  the  plaintiff  demands 
relief,  either  general  or  special,  the  whole  is  demurrable. ^ 
This  rule  confines  discovery  to  its  legitimate  function  of 
furnishing  evidence,  and  prevents  it  from  operating  to  ex- 
tend the  equitable  jurisdiction  to  causes  which  would  other- 
wise be  solely  cognizable  at  law. 

§  227.  American  Rule. — A  very  different  doctrine  has 
been  asserted  and  perhaps  established  by  the  courts  of  sev- 
eral American  states,  in  which  the  separate  jurisdiction  of 
chancery  formerly  existed,  and  of  other  states  in  which 
such  separate  jurisdiction  is  still  preserved;  and  the  doc- 
trine thus  affirmed  has  sometimes  been  spoken  of  by 
writers  and  judges  as  the  distinctively  American  doctrine 
on  the  subject.     It  may  well  be  doubted,  however,  whether, 

§  226,  2  Foley  v.  Hill,  2  H.  L.  Cas.  28,  37;  Morris  v.  Morgan,  10  Sim. 
341;  Benyon  v.  Nettlefold,  3  Maen.  &  G.  94;  Deare  v.  Attorney-General, 
1  Younge  &  C.  205,  206;  Albretcht  v.  Sussman,  2  Ves.  &  B.  328;  and 
see  Story's  Eq.  PL,  §  312,  note  3,  and  cases  there  cited.  The  same  doe- 
trine  as  to  the  effect  of  discovery  upon  the  jurisdiction  has  been  adopted 
in  some  American  states :  Mitchell  v.  Greene,  10  Met.  101 ;  Pease  v. 
Pease,  8  Met.  395 ;  Little  v.  Cooper,  10  N.  J.  Eq.  273 ;  Miller  v.  Scammon, 
52  N.  H.  609,  610;  Stone  v.  Anderson,  26  N.  H.  506»  .518;  Stevens  v. 
Williams,  12  N.  H.  246 ;  Tappam  v.  Evans,  11  N.  H.  311,  325.* 

§  226,  (a)  See,  also,  De  Bevoise  v.  and  relief  are  sought,  but  the  only 
H.  &  W.  Co.  (N.  J.  Eq.),  58  Atl.  91;  ground  for  equitable  relief  appears 
People's  Nat.  Bank  v.  Kern,  193  Pa.  to  be  a  discovery  of  evidence  to  be 
St.  59,  44  Atl.  331;  India  Eubber  used  in  the  enforcement  of  a  purely 
Co.  V.  Consol.  Rubber  Tire  Co.,  117  legal  demand,  the  jurisdiction  can- 
Fed.  354;  Safford  v.  Ensign  Mfg.  not  be  sustained."  But  §  225,  supra, 
Co.  (C.  C.  A.),  120  Fed.  480,  483.  In  is  said  not  to  apply  in  the  federal 
the  last  case  it  is  stated  that  the  courts  where  the  legal  remedy  for 
federal  equity  practice  is  modeled  on  fraud  is  adequate;  Griesa  v.  Mutual 
the  established  English  practice,  and  Life  Ins.  Co.,  1G9  Fed.  509,  94  C.  0. 
that  "in   a   case  in  which   discovery  A.  635. 


349  DISCOVERY  AS  A  SOURCE  OF  JURISDICTION.  §  227 

with  all  the  limitations  and  exceptions  which  have  been 
suggested,  any  doctrine  can  be  considered  as  having  been 
fairly  established  by  a  preponderance  of  judicial  decisions 
(not  of  mere  dicta)  which  goes  beyond  the  general  proposi- 
tion quoted  in  a  preceding  paragraph,  at  one  time  admitted 
by  English  text-writers. ^  The  rule  has  been  asserted  by 
many  American  courts  in  very  general  terms,  that  when- 
ever a  court  of  equity  has  obtained  jurisdiction  of  a  cause 
for  any  one  purpose,  it  may  retain  such  cause  for  the  pur- 
pose of  adjudicating  upon  all  the  matters  involved,  and  of 
granting  complete  relief.  As  a  consequence  of  this  prin- 
ciple, whenever  the  court  can  entertain  a  suit  for  discov- 
ery, and  a  discovery  is  obtained,  the  court  will  go  on  and 
decide  the  whole  issue,  and  will  grant  to  the  plaintiff,  if  he 
has  prayed  for  it,  whatever  relief  is  proper,  even  though 
such  relief  is  legal  in  its  kind,  and  could  have  been  obtained 
by  an  action  at  law.^  a    These  general  expressions  would 

§  227,  1  Ante,  §  224.  I  refer  to  the  general  proposition  laid  down  in 
Fonblanque's  Equity,  that  when  the  court  has  acquired  jurisdiction  for  a 
discovery,  it  will  entertain  jurisdiction  for  relief  in  most  cases  of  fraud, 
accident,  mistake,  and  account. 

§  227,  2  Rathbone  v.  Warren,  10  Johns.  587,  596 ;  King  v.  Baldwin, 
17  Johns.  384,  8  Am.  Dec.  415;  Gelston  v.  Hoyt,  1  Johns.  Ch.  543;  Sey- 
mour V.  Sejrmour,  4  Johns.  Ch.  409;  Shepard  v.  Sanford,  3  Barb.  Ch. 
127;  Sanborn  v.  Kittredge,  20  Vt.  632,  50  Am.  Dec.  58;  Holmes  v.  Holmes, 
36  Vt.  525;  Traip  v.  Gould,  15  Me.  82;  Isham  v.  Gilbert,  3  Conn.  166; 
Middletown  Bank  v.  Russ,  3  Conn.  135,  139,  8  Am.  Dec.  164;  Lyons  v. 

§  227,  (a)  The  text  is  cited  in  Col-  36  Atl.  411  (on  a  bill  for  discovery 
lier  V.  Collier  (N.  J.  Eq.),  33  Atl.  and  production  of  private  letters, 
103.  See,  also,  Wallis  v.  Skelly,  30  recovery  of  the  letters  maj^  be  de- 
Fed.  747;  New  York  Ins.  Co.  v.  creed);  Lancy  v.  Randlett,  80  Me. 
Roulet,  24  Wend.  505  (opinion  of  169,  6  Am.  St.  Rep.  169.  See,  fur- 
Senator  Edwards);  Wood  v.  Hudson,  ther,  Elliott  v.  Kyle,  176  Ala.  167, 
96  Ala.  469,  11  South.  530;  Thomp-  57  South.  752  (creditors'  bill  for  dis- 
son  v.  Whitaker  Iron  Co.,  41  W.  Va.  covery  of  assets  and  complete  re- 
574,  23  S.  K  795;  Smith  v.  Smith's  lief);  Woods  v.  Riley,  72  Miss.  73, 
Adm'r,  92  Va.  696,  24  S.  E.  280;  76,  18  South.  384  (under  Mississippi 
Roanoke  St.  R'y  Co.  v.  Hicks,  96  Const.  1890,  §  160) ;  Keystone  Lum- 
Va.  510,  32  S.  E.  295;  Dock  v.  Dock,  ber  Yard  v.  Yazoo  &  M.  V.  R.  Co.,  96 
180  Pa.  St.  14,  57  Am.  St.  Rep.  617,  Miss.  116,  Ann.  Cas.  1912A,  801.  50 


§  227  EQUITY    JURISPRUDENCE.  350 

seem  to  extend  the  concurrent  jurisdiction  of  equity  almost 
without  limit,  over  matters  ordinarily  cognizable  at  law. 
It  is  not  a  little  remarkable  that  courts  which,  in  relation 
to  some  matters,  have  shown  a  strong  tendency  to  restrict 
the  equitable  jurisdiction,  upon  the  alleged  ground  that 
the  remedies  at  law  are  adequate,  should  thus  have  opened 
the  door  for  an  apparently  indefinite  extension  of  the  juris- 
diction over  large  classes  of  cases  in  which,  excepting  the 
single  incident  of  a  discovery  of  evidence,  the  legal  reme- 
dies are  confessedly  adequate.^ 

Miller,  6  Gratt.  438,  52  Am.  Dec.  129;  Chichester's  Executors  v.  Vass's 
Administrators,  1  Munf .  98,  4  Am.  Dec.  531 ;  Sims  v.  Aughtery,  4  Strob. 
Eq.  121;  Ferguson  v.  Waters,  3  Bibb,  303;  Brooks  v.  Stolley,  3  McLean, 
523 ;  Warner  v.  Daniels,  1  Wood.  &  M.  90 ;  Foster  v.  Swasey,  2  Wood  &  M. 
217;  Hepburn  v.  Dunlop,  1  Wheat.  197;  Russell  v.  Clark's  Executors, 
7  Crunch,  69.  In  the  last-named  case,  the  United  States  supreme  court 
went  so  far  as  to  announce  the  following  universal  rule:  "That  if  certain 
facts  essential  to  the  merits  of  a  claim  purely  legal  be  exclusively  within 
the  knowledge  of  the  party  against  whom  that  claim  is  asserted,  he  may 
be  required  in  a  court  of  chancery  to  disclose  those  facts;  and  the  court, 
being  thus  rightfully  in  possession  of  the  cause,  will  proceed  to  determine 
the  whole  matter  in  controversy." 

§  227,  3  The  extreme  reluctance  of  some  American  courts  to  extend  the 
jurisdiction  of  equity,  even  where  such  extension  consists  solely  in  apply- 
ing familiar  principles  to  new  conditions  of  fact,  is  in  marked  contrast 
with  the  freedom  shown  by  English  chancery  judges  in  developing  the 
equity  jurisprudence.  An  illustration  may  be  seen  in  their  refusal  to  use 
the  injunction  to  restrain  trespasses,  or  to  restrain  the  breach  of  con- 
tracts, or  to  use  the  mandatory  injunction,  in  many  instances  where  such 
use  has  become  common  in  England.     In  the  face  of  this  tendency,  the 

South.  445.  But  see  People's  Nat.  when  discovery  is  sought  and  is 
Bank  v.  Kern,  193  Pa.  St.  59,  44  material  to  the  relief.  Yates  v. 
Atl.  331.  In  Miller  v.  U.  S.  Casu-  Stuart's  Adm'r,  39  W.  Va.  124,  19 
alty  Co.,  61  N.  J.  Eq.  110,  47  Atl.  S.  E.  423.  See,  also,  Stitzer  v. 
509,  it  was  said  that  "the  court  has  Fonder,  214  Pa.  117,  63  Atl.  421. 
not  jurisdiction  to  decree  relief  upon  It  is  frequently  stated  that  equity 
a  purely  legal  claim  under  the  gen-  will  take  jurisdiction  of  accounts 
eral  prayer  for  relief"  in  a  bill  for  when  discovery  is  necessary.  La- 
discovery.  It  has  been  held  that  fever  v.  Billmyer,  5  W.  Va.  33;  Coff- 
equity  will  take  jurisdiction  of  ae-  man  v.  Sangston,  21  Gratt.  263. 
counts  which  are  all  on  one  side  only 


351  DISCOVEKY  AS  A  SOURCE  OF  JUBISDICTION.  §  228 

§  228.  It  is  plain  that  tins  doctrine,  although  expressed 
in  such  broad  terms,  cannot  be  intended  to  operate  in  all  of 
its  generality.  Taken  literally  and  without  limitation,  it 
would  break  down  the  barriers  between  the  jurisdictions  in 
equity  and  at  law,  and  would  virtually  render  the  equitable 
jurisdiction  universal  by  bringing  every  judicial  contro- 
versy within  its  scope.  Before  the  modern  legislation  con- 
cerning witnesses  and  evidence,  the  actions  at  law  were 
very  few  in  which  one  or  the  other  of  the  parties  might  not 
be  aided  by  a  discovery,  and  might  not,  in  conformity  with 
settled  rules,  maintain  a  suit  for  a  discovery.  If  a  discov- 
ery, therefore,  rightfully  demanded  and  obtained,  were  of 
itself  sufficient  to  bring  the  entire  cause  within  the  jurisdic- 
tion of  chancery  for  final  adjudication  upon  its  merits,  it 
is  plain  that  almost  every  kind  and  class  of  purely  legal 
actions  could  thus  be  brought  within  the  equitable  concur- 
rent jurisdiction;  and  the  fundamental  principle,  that  the 
concurrent  equitable  jurisdiction  only  exists  in  cases  where 
the  legal  remedies  are  inadequate,  would  practically  be 
abrogated, — would  become  an  empty  formula.  This  con- 
clusion, which  is  a  necessary  deduction  from  the  assumed 
premises,  shows  that  the  premises  themselves  are  false. 
The  doctrine  of  which  it  is  a  consequence  cannot  be  true  in 
all  the  generality  of  its  statement.^ 

adoption  by  the  same  courts  of  a  general  rule,  which,  if  not  limited,  would 
sweep  almost  every  case  at  law  within  the  equitable  jurisdiction,  is,  to  say 
the  least,  very  remarkable. 

§  228,  1  See  Foley  v.  Hill,  2  H.  L.  Cas.  28,  37,  per  Lord  Cottenham, 
where  this  able  chancellor  thus  described  the  effect  of  the  notion  that 
discovery  alone  is  a  source  of  jurisdiction :  "It  is  not  because  you  are 
entitled  to  discovery  that  therefore  you  are  entitled  to  an  account.  That 
is  entirely  a  fallacy.  That  would,  if  carried  to  the  extent  to  which  it 
would  be  carried  by  the  argument,  make  it  appear  that  every  case  is  a 
matter  of  equitable  jurisdiction,  and  that  where  a  plaintiff  is  entitled  to  a 
demand  he  may  come  to  a  court  of  equity  for  a  discovery.  But  the  rule 
is,  that  where  a  case  is  so  complicated,  or  where  from  other  circumstances 
the  remedy  at  law  will  not  give  adequate  relief,  then  the  court  of  equity 
assumes  jurisdiction."  As  this  case  was  one  for  an  accounting,  the  chan- 
cellor, in  his  remarks,  was  speaking-  directly  of  the  remedy  for  an  account. 


§229 


EQUITY    JURISPRUDENCE. 


352 


§  229.  Limitations  were  therefore  established  which 
very  much  restricted  the  operation  of  the  doctrine.  In  the 
first  place,  the  rule  is  settled  in  those  American  courts 
which  admit  the  general  doctrine  that  when  the  action  is 
one  cognizable  at  law,  in  which  the  rights  and  remedies  are 
legal,  and  which  does  not  otherwise  belong  to  the  equitable 
jurisdiction,  but  which  the  plaintiff  brings  in  a  court  of 
equity  under  the  doctrine  that  a  discovery  of  itself  enables 
equity  to  extend  its  concurrent  jurisdiction  over  the  whole 
cause,  he  must  allege  that  the  facts  concerning  which  he 
seeks  a  disclosure  are  material  to  his  cause  of  action,  and 
that  he  has  no  means  of  proving  those  facts  by  the  testi- 
mony of  witnesses  or  by  any  other  kind  of  evidence  used  in 
courts  of  law,  that  the  only  mode  of  establishing  them  is  by 
compelling  the  defendant  to  make  disclosure,  and  therefore 
that  a  discovery  by  suit  in  equity  is  indispensable. ^  With- 
out these  allegations  the  plaintiff  cannot  avail  himself  of 
the  doctrine,  and  obtain  relief  as  a  consequence  of  the  dis- 


§229,  (a)  Cited  to  this  effect  in 
Thompson  v.  Whitaker  Iron  Co.,  41 
W.  Va.  574,  23  S.  E.  795;  Lancey  v. 
Eandlett,  80  Me.  169,  6  Am.  St.  Rep. 
169,  13  Atl.  686;  cited,  also,  in 
United  Cigarette  Mach.  Co.  v.  Wins- 
ton Cigarette  Mach.  Co.,  194  Fed. 
947,  114  C.  C.  A.  583.  To  the  same 
effect,  see  Marsh  v.  Davison,  9  Paige. 
580;  Eobson  v,  Doyle,  191  111.  566, 
61  N.  E.  435  (dictum);  Wolf  v.  Un- 
derwood, 96  Ala.  329,  11  South.  344; 
Shackelford  v.  Bankhead,  72  Ala. 
476;  Sullivan  v.  Lawler,  72  Ala.  74; 
Pollak  V.  H.  B.  Claflin  Co.  (Ala.), 
35  South.  645  (citing  Guice  v.  Par- 
ker, 46  Ala.  616;  Dickinson  v.  Lewis, 
34  Ala.  638,  645;  Continental  Life 
Ins.  Co.  v.  Webb,  54  Ala.  688;  Vir- 
ginia A.  M.  &  M.  Co.  V.  Hale,  93 
Ala.  542,  9  South.  256).  See.  also, 
the  following  recent  cases:  United 
States  V.  Bitter  Eoot  Development 
Co.,  200  U.  S.  451,  50  L.  Ed.  550,  26 
Sup.    Ct.    318;     King    v.    Livingston 


Mfg.  Co.,  180  Ala.  118,  60  South.  143; 
Gayle  v.  Pennington,  185  Ala.  53,  64 
South.  572  (bill  did  not  show  that 
a  proper  attempt  had  been  made  by 
plaintiff  to  obtain  information  from 
original  sources);  Blessing  v.  Smith, 
74  N.  J.  Eq.  593,  70  Atl.  933;  Frank- 
lin Township  v.  .Jones,  80  N.  .T.  Eq. 
517,  85  Atl.  347;  Drape  v.  Coleman, 
233  Pa.  St.  585,  82  Atl.  957;  Logan 
V.  Ballard,  61  W.  Va.  526,  57  S.  E. 
143;  Dudley  v.  G.  W.  Niswander  & 
Co.,  65  W.  Va.  461,  64  S.  E.  745 
(showing  of  necessity  sufficient  in 
this  case);  Price  v.  Laing,  67  W. 
Va.  373,  68  S.  E.  24.  "To  make 
his  prayer  for  discovery  a  ground 
of  equitable  jurisdiction,  plaintiff 
should  allege  his  inability  to  estab- 
lish at  law  the  facts  of  which  the 
discovery  is  sought.  It  would  have 
been  otherwise  were  the  bill  merely 
for  a  discovery."  Cecil  Nat.  Bank 
v.  Thurber,  59  Fed.  913,  8  C.  C.  A. 
365,  8  U.  S.  App.  496.     In  Brown  v. 


353  DISCOVEEY  AS  A  SOURCE  OF  JURISDICTION.  §  229 

covery.  Nor  are  these  allegations  a  mere  empty  form,  a 
mere  fiction  of  pleading ;  they  may  be  controverted,  must  be 
supported  by  proof,  and  if  disproved,  the  whole  foundation 
for  the  equitable  interference  in  the  case  would  fail.i  ^     In 

§  229,  1  Gelston  v.  Hoyt,  1  Johns.  Ch.  543 ;  Seymour  v.  Seymour,  4 
Johns.  Ch.  409;  Laight  v.  Morgan,  1  Johns.  Cas.  492,  2  Caines  Cas.  344; 
Bank  of  U.  S.  v.  Biddle,  2  Pars.  Cas.  31;  Lyons  v.  Miller,  6  Gratt.  427, 
438,  52  Am.  Dec.  129;  Duvals  v.  Ross,  2  Munf.  290,  296;  Bass  v.  Bass, 
4  Hen.  &  M.  478 ;  Pryor  v.  Adams,  1  Call,  382,  1  Am.  Dec.  533 ;  Stacy 
V.  Pearson,  3  Rich.  Eq.  148,  152;  Sims  v.  Aughtery,  4  Strob.  Eq.  103, 
121 ;  Merchants'  Bank  v.  Davis,  3  Ga.  112 ;  Bullock  v.  Boyd,  2  A.  K.  Marsh. 
322;  Emerson  v.  Staton,  3  T.  B.  Mon.  116,  118.  In  an  early  case,  Chan- 
cellor Kent,  through  a  mistaken  view  concerning  discovery,  held  that 
these  same  allegations  by  the  plaintiff  are  essential  in  every  equity  suit 
for  a  mere  discovery  alone  without  any  relief,  in  aid  of  a  pending  or 
expected  action  at  law,  and  that  if  such  averments  are  omitted  from  the 
bill,  the  sv;it  for  a  discovery  must  fail :  Gelston  v.  Hoyt,  1  Johns.  Ch.  543. 
This  erroneous  ruling  was  followed  by  the  same  court  in  Seymour  v. 
Seymour,  4  Johns.  Ch.  409;  Leggett  v.  Postley,  2  Paige,  599;  and  by 
other  courts  in  other  cases.  But  this  mistaken  view  has  been  corrected, 
and  these  decisions  overruled,  and  the  requirement  given  in  the  text  con- 
fined to  cases  where  the  plaintiff  demands  relief  legal  in  its  nature  as  a 
direct  consequence  of  the  discovery:  March  v.  Davison,  9  Paige,  580; 
Vance  v.  Andrews,  2  Barb.  Ch.  370.  And  see  other  cases,  ante,  §  197, 
note,  where  this  point  is  more  fully  explained. 

Swann,  10  Pet.  497,  the  court  said:  that  the  facts  are  known  to  the  de- 

"The  courts  of  common  law  having  fendant,  and   ought   to   be   disclosed 

full  power  to  compel  the  attendance  by  him,  and  that  the  complainant  is 

of  witnesses,  it  follows  that  the  aid  unable  to  prove  them  by  other  tes- 

of   equity   can   alone  be   wanted  for  timony;  and  when  the  facts  are  de- 

a    discovery    in    those    cases    where  sired  to  assist  a  court  of  law  in  the 

there  is  no  witness,  to  prove  what  is  progress    of    a    case,    it    should    be 

sought  from   the   conscience   of   the  affirmatively  stated  in  the  bill  that 

interested    party.     Courts    of    chan-  they  are  wanted  for  such  purpose." 

tery    have,    then,    established    rules  This   was   a   case  for   discovery   and 

for  the  exercise  of  this  jurisdiction,  relief. 

to  keep  it  within  its  proper  limits,  §  229,    (b)    The   text   is   quoted   in 

and  to  prevent  it  from  encroaching  Larkey  v.  Gardner,  105  Va.  718,  54 

upon   the   jurisdiction   of   the   courts  S.  E.  886  (must  aver  that  discovery 

of  common  law.     The  rule  to  be  ap-  is  indispensable);  cited  to  the  same 

plied  to  a  bill  seeking  for  discovery  point   in   Prewett   v.    Citizens'    Nat. 

from  an  interested  party  is  that  the  Bank,  66   W.  Va.   184,   135  Am.  St. 

complainant  shall  charge  in  his  bill  Rep.  1019,  66  S.  E.  231. 
1—23 


§  230  EQUITY   JURISPRUDENCE.  354 

the  second  place,  if  the  defendant  by  his  answer  fully 
denies  all  the  allegations  of  fact  with  respect  to  which  a 
discovery  is  demanded,  the  whole  suit  must  fail;  the  court 
of  equity  cannot  grant  the  relief  prayed  for,  since  its  juris- 
diction to  give  relief  in  such  causes,  according  to  the  very 
assumption,  rests  upon  the  fact  of  a  discovery  rightfully 
obtained.2  c 

§  230.  True  Meaning  of  the  American  Rule. — By  means 
of  these  two  restrictive  rules,  the  general  expressions  of 
the  American  judges,  before  quoted,  are  very  much  limited, 
and   their    operation   is   brought   within   much   narrower 

§  229,  2  This  results  from  the  general  principle  concerning  all  dis- 
covery, stated  in  a  preceding  section,  that  the  actual  discovery  obtainable 
by  the  plaintiff  depends  upon  the  disclosures  of  the  defendant  in  his 
answer.  While  the  defendant  can  be  compelled  to  answer  every  material 
averment  and  interrogatory  of  the  bill,  distinctly  and  squarely,  what  he 
shall  answer  rests  within  his  own  conscience.  His  answer  cannot,  for 
the  purpose  of  discovery  merely, — that  is,  considered  merely  as  evidence, — • 
be  controverted.  If  he  distinctly  denies  all  the  allegations  of  the  plain- 
tiff, that  is  the  end  of  the  discovery,  and  as  a  matter  of  necessaiy  conse- 
quence, an  end  of  the  relief  in  this  class  of  suits.  See  ante,  §§  204,  206; 
Russell  V.  Clarke's  Ex'rs,  7  Craneh,  69;  Ferguson  v.  Waters,  3  Bibb,  303; 
Robinson  v.  Gilbreth,  4  Bibb,  184. 

§  229,  (c)  In  Buzard  v.  Houston,  See,  also,  Cecil  Nat.  Bank  v.  Thurber, 
119  U.  S.  355,  7  Sup.  Ct.  249,  tlie  59  Fed.  913,  8  C.  C.  A.  365,  8  U.  S. 
court  said:  "It  is  enough  to  say  that  App.  496;  Hale  v.  Clarkson,  23  Gratt. 
the  case  clearly  falls  within  the  42;  Collins  v.  Sutton,  94  Va.  127,  26 
statement  of  Chief  Justice  Marshall:  S.  E'.  415.  A  bill  seeking  discovery 
'Biit  this  rule  cannot  be  abused  by  should  not  be  retained  after  the  an- 
being  employed  as  a  mere  pretext  swer  has  denied  the  matter  sought, 
for  bringing  causes,  proper  for  a  Walker  v.  Brown,  58  Fed.  23;  Brown 
court  of  law,  into  a  court  of  equity.  v.  Swann,  10  Pet.  497;  Insurance  Co. 
If  the  answer  of  defendant  discloses  v.  Stanchfield,  1  Dill.  424.  Of  course^ 
nothing,  and  the  plaintiff  supports  if  the  bill  is  brought  for  discovery 
himself  by  evidence  in  his  own  pos-  and  equitahle  relief,  it  may  be  re- 
session,  unaided  by  the  confessions  tained  for  the  latter  purpose  when 
of  defendant,  the  established  rules  the  first  purpose  fails,  if  it  states  a 
limiting  jurisdiction  require  that  he  case  calling  for  the  exercise  of  equi- 
should  be  dismissed  from  the  court  table  jurisdiction.  Bouton  v.  Smith, 
of  chancery,  and  permitted  to  as-  113  111.  481. 
sert  his  rights  in  a  court  of  law.' " 


355  DISCOVERY  AS  A  SOURCE  OF  JURISDICTION.  §  230 

bounds.  The  so-called  American  doctrine  concerning  the 
effect  of  discovery  upon  the  equitable  jurisdiction  is  thus 
practically  as  follows :  Wlienever,  in  a  controversy  purely 
legal,  depending  upon  legal  interests  and  primary  rights  of 
the  plaintiff,  and  seeking  to  obtain  final  reliefs  which  are 
wholly  legal,  the  plaintiff  prays  for  a  discovery  as  a  pre- 
liminary relief,  and  alleges  and  proves  that  such  a  dis- 
covery is  absolutely  essential  to  the  maintenance  of  his 
contention;  that  there  is  no  other  mode  of  obtaining  the 
requisite  proofs  to  sustain  his  cause ;  that  he  is  utterly  un- 
able to  establish  the  issues  on  hi^  part  by  the  testimony  of 
witnesses,  or  by  any  other  kind  of  evidence  admissible  in 
courts  of  law, — so  that  an  action  at  law  is  utterly  imprac- 
ticable ;  and  whenever,  in  such  case,  the  defendant  does  not 
wholly  deny  the  facts  which  the  plaintiff  alleges  as  the 
l)asis  of  his  recovery,  but  makes  an  actual  discovery  by  his 
answer  disclosing  a  right  of  action  in  the  plaintiff, — then 
the  court  of  equity  having  jurisdiction  of  such  a  case  to 
compel  a  discovery  acquires  a  jurisdiction  over  it  for  all 
purposes,  and  may  go  on  and  determine  all  the  issues,  and 
decree  full  and  final  relief,  although  the  relief  so  given  is 
of  the  same  kind  as  that  granted  by  courts  of  law  in  similar 
controversies. 1  *     It  is  plain,  therefore,  that  the  doctrine 

§  230,  1  Gelston  v.  Hoyt,  1  Johns.  Ch.  543 ;  Seymour  v.  Seymour,  4 
Johns.  Ch.  409;  Rathbone  v.  Warren,  10  Johns.  587,  596;  Shepnrcl  v. 
Sanford,  3  Barb.  Ch.  127;  Sanborn  v.  Kittredge,  20  Vt.  632,  50  Am.  Dec. 
58;  Holmes  v.  Hohnes,  36  Vt.  525;  Traip  v.  Gould,  15  Me.  82;  Isliam  v. 
Gilbert,  3  Conn.  166;  Middletown  Bank  v.  Russ,  3  Conn.  135,  139,  8 
Am.  Dec.  161;  Bank  of  U.  S.  v.  Biddle,  2  Pars.  Cas.  31;  Lyons  v.  Miller, 
6  Gratt.  427,  438,  52  Am.  Dec.  129;  Duvals  v.  Ross,  2  Munf.  290,  296; 
Stacy  V.  Pearson,  3  Rich.  Eq.  148,  152;  Sims  v.  Aughtery,  4  Strob.  Eq. 
103,  121 ;  Brooks  v.  Stolley,  3  McLean,  523 ;  Warner  v.  Daniels,  1  Wood. 
&  M.  90;  Foster  v.  Swasey,  2  Wood.  &  M.  217;  Russell  v.  Clark,  7  Crauch, 
69. 

§230,  (a)  Quoted  in  Virfrinia  &  A.  a  casualty  insurance  company  to  ob- 

Min.  &  Mfg.  Co.  V.  Hale,  93  Ala.  542,  tain   inspection    of    insured's    books, 

9  South.  256;  Sloss-Sheffield  Steel  &  the     premium      depending     on      tho 

Iron   Co.  V.   Maryland   Casualty  Co.,  amount  of  the  insured's  payroll,  and 

167  Ala.  557,  52  South.  751  (suit  by  the  information  being  obtainable  in 


§  230  EQUITY    JURISPRUDENCE.  356 

thus  narrowed  rests  solely  upon  the  essential  fact  that  the 
successful  prosecution  of  an  action  at  law,  and  the  recovery 
by  the  plaintiff  of  the  reliefs  to  which  he  is  justly  entitled 
in  a  court,  of  law,  are  rendered  wholly  impossible  by  tlia 
operation  of  the  arbitrary  rules  of  the  law  concerning  tha 
examination  of  witnesses,  the  testimony  of  the  parties 
themselves,   and   the   production   of   evidence   generally.^ 

§  230,  2  It  should  be  remembered  that  at  the  time  when  this  equity  doc- 
trine was  established  the  rules  of  the  law  concerning  evidence  were  ex- 
tremely arbitrary,  and  productive  of  great  injustice.  Actions  at  law 
based  upon  the  plainest  right  might  frequently  fail  from  the  impossibility 
of  i^roving  the  facts  in  conformity  with  the  legal  rules  of  evidence.  Not 
only  were  parties  to  actions  unable  to  testify  for  themselves  or  for  their 
opponents,  but  all  persons  having  any  pecuniary  interest  in  the  event  of 
the  action  were  disabled;  the  door  was  closed  against  the  admission  of  the 
truth  from  many  directions.  An  appeal  to  the  powers  of  equity  to 
compel  a  discovery  from  the  opposite  party  was  therefore  the  only  possible 
mode  in  very  many  instances  of  eliciting  the  facts  which  would  make  out 
the  plaintiff's  cause  of  action  in  suits  of  a  purely  legal  nature.  It  is 
true,  there  was  no  absolute  necessity  of  allowing  the  equity  court  to  go 
on  and  decide  the  whole  cause  after  a  discovery  was  made.  In  such  cases, 
as  well  as  in  all  others  where  a  separate  bill  of  discovery  had  been  filed, 
after  the  discovery  was  made  the  plaintiff  might  return  to  a  court  of  law, 
prosecute  his  legal  action  in  that  tribunal,  and  use  the  defendant's  answer 
containing  the  discovery  as  evidence  to  support  his  own  side  on  the  trial 
of  that  action.  This  latter  practice  became  finally  settled  in  England,  as 
has  already  been  shown.  The  other  practice  of  the  equity  courts  in  this 
countr}%  in  assuming  jurisdiction  to  decide  the  entire  issues,  and  to  decree 
complete  relief,  where  a  discovery  had  actually  been  made  in  cases  ivhich 
could  not  have  'been  tried  at  law  without  such  discovery,  was  doubtless 
adopted  from  motives  of  policy  and  of  benefit  to  the  parties  themselves, 
since  they  were  thereby  saved  from  the  labor,  time,  and  expense  of  a 
second  action  and  trial  at  law,  after  they  had  already  in  effect  tried  the 
entire  matters  in  difference  between  them.  Still  the  doctrine  deprived 
parties  of  their  right  to  a  jury  trial,  under  circumstances  which  did  not 
render  such  deprivation  at  all  necessaiy.  After  a  discovery  was  once 
obtained,  a  trial  of  the  issues  at  law  by  a  jury  was  as  practicable  as  in 
any  other  kinds  of  legal  controversies. 

no   other  way).     Cited  in   Wood   v.  Becker     r.     Frederick     W.     Lipps 

Hudson,  96  Ala.  469,  11  South.  530;  Co.    (Md.),    101    Atl.    783    (bill    for 

Daab  v.  New  York  Cent.  &  H.  R.  B.  discovery    and    accounting   not    sus- 

Co.,   70   N.  J.   Eq.  4S9,   62   Atl.  449;  tained). 


357  DISCOVERY  AS  A  SOURCE  OF  JURISDICTION".  §  230 

The  question  then  arises,  What  effect  has  been  produced 
upon  this  particular  doctrine  by  the  modem  legislation, 
which  authorizes  the  examination  of  parties  on  the  trial  of 
actions,  abolishes  the  disabilities  of  witnesses,  and  removes 
the  other  legal  restrictions  upon  the  admissibility  of  evi- 
dence? In  my  opinion,  the  necessary  effect  of  such  legis- 
lation has  been  to  abrogate  the  doctrine  altogether,  even  in 
those  states  where  ** discovery"  is  still  retained.  In  fact, 
the  foundation  upon  which  this  peculiar  American  doctrine 
concerning  the  effect  of  discovery  in  the  classes  of  cases 
above  described  was  rested  by  the  courts,  has  been  wholly 
swept  away  by  these  refonnatory  statutes.  It  is  simply 
impossible  for  a  plaintiff  now  to  allege  with  truth,  and  of 
course  impossible  for  him  to  prove  in  any  controversy  legal 
in  its  nature,  that  a  discovery  by  means  of  a  suit  in  equity 
is  essential  to  his  maintaining  his  cause  of  action,  and  that 
he  is  unable  to  establish  the  issues  on  his  part  by  the  testi- 
mony of  witnesses,  and  by  other  evidence  admissible  in 
courts  of  law.  If  a  plaintiff  has  a  legal  cause  of  action,  and 
can  substantiate  it  by  means  of  a  discovery  obtained  from 
his  opponent  in  equity,  then  it  must  necessarily  follow  that 
he  can  substantiate  it  on  the  trial  of  the  same  controversy 
at  law  by  means  of  the  examination  of  his  opponent  as  a 
witness;  and  furthermore,  he  can  examine  on  the  trial  at 
law  all  other  persons  whose  testimony  is  material.  In 
short,  the  plaintiff's  allegations  that  he  has  a  legal  cause 
of  action,  and  that  he  can  sustain  it  by  means  of  a  discov- 
ery, made  by  the  defendant,  of  facts  within  the  latter 's  own 
knowledge,  would,  of  necessity,  show  that  he  could  main- 
tain the  same  cause  of  action  at  law,  by  means  of  the  testi- 
mony which  the  defendant  could  be  compelled  to  give  as  a 
witness  on  the  trial  thereof  in  a  court  of  law.  It  is  true 
that  the  principle  is  well  settled  that  when  a  court  of  equity 
had  jurisdiction  over  a  certain  subject-matter,  it  does  not 
lose  such  jurisdiction  when  courts  of  law  have  subsequently^ 
acquired  the  same  jurisdiction.  In  my  opinion,  the  matter 
under  consideration  does  not  come  within  the  operation  of 


§  230  EQUITY    JUEISPRUDENCE.  358 

this  principle.  It  is  not  the  case  of  a  jurisdiction  held  by 
courts  of  equity  which  courts  of  law  did  not  originally 
possess,  but  have  now  obtained.  By  the  very  assumption, 
the  controversy^  the  cause  of  action,  and  the  reliefs  de- 
manded are  all  legal  in  their  nature;  courts  of  law  always 
had  jurisdiction  over  them.  The  only  difficulty  was,  that 
by  reason  of  certain  arbitrary  rules  of  law  concerning  evi- 
dence, the  jurisdiction  of  the  law  courts  over  this  particular 
class  of  legal  controversies  could  not  be  exercised  so  as  to 
do  full  justice,  until  the  defective  legal  rules  of  evidence 
had  been  aided  or  supplemented  by  means  of  a  discovery  in 
equity ;  when  this  discovery  was  once  made,  and  the  proper 
evidence  was  thereby  obtained,  the  jurisdiction  at  law  could 
then  be  exercised,  and  complete  justice  could  be  done  by  its 
trial  and  judgment,  as  much  as  in  any  other  legal  contro- 
versies. Since  the  particular  equity  doctrine  under  dis- 
cussion arose,  not  from  the  absence  of  a  jurisdiction  at  law, 
but  merely  from  certain  hindrances  to  its  useful  exercise, 
and  since  this  doctrine  depended  for  its  existence  and! 
operation  upon  certain  rules  of  evidence,  it  is  not,  in  my 
opinion,  embraced  within  the  protection  of  the  general  prin- 
ciple as  to  jurisdiction  quoted  above ;  it  seems  to  me  to  have 
been  necessarily  abrogated  by  the  sweeping  changes  ef- 
fected in  the  legal  rules  of  evidence  by  modem  statutes. ^ 

§  230,  3  Miller  v.  Scammon,  52  N.  H.  609,  610,  which  fully  supports 
these  conclusions.'*  It  is  true  that  it  has  been  held  in  some  states  that 
the  jurisdiction  of  equity  to  entertain  "bills  of  discovery,"  properly  so 
called,  has  not  been  abrogated  by  the  legislation  in  question.  But  assum- 
ing that  these  decisions  are  correct,  they  do  not,  as  it  seems  to  me, 
determine  the  present  question.  Equity  had  a  well-settled,  independent 
jurisdiction  to  entertain  "bills  for  discovei-y,"  technically  so  called.  This 
jurisdiction  had  existed  from  the  earliest  periods  of  the  English  court  of 
chancery;  it  was  exclusive;  the  law  courts  had  no  such  power.  Even  the 
modem  legislation  has  not  conferred  upon  the  law  courts  a  jurisdiction 
to  entertain  any  such  suits,  but  has  only  removed  the  disabilities  which 
prevented  parties  and  other  persons  from  testifying  on  trials  of  actions. 

§230,  (1»)  See,  also,  §  302.  See  ber  Co.,  150  Ala.  602.  9  L.  R.  A. 
however,  Nixon  v.  Clear  Creek  Luni-       (N.  S.)   1255,  43  South.  805. 


359  JUBISDICTION    EMBRACES    WHOLE    MATTEB.  §  231 


SECTION  III. 

THE  DOCTRINE  THAT  JURISDICTION  EXISTING  OVER  SOME 
PORTION  OR  INCIDENT  EXTENDS  TO  AND  EMBRACES 
THE  WHOLE  SUBJECT-MATTER  OR  CONTROVERSY. 

ANALYSIS. 

§  231.  The  doctrine  as  applied  in  the  concurrent  jurisdiction, 

§  232.  As  applied  in  the  exclusive  jurisdiction. 

§  233.  Limitations  on  the  doctrine. 

§§  234-241.  Illustrations  of  the  doctrine. 

§  234.  In  cases  of  discovery. 

§  235.  In  cases  of  administration. 

§  23ff.  In  cases  of  injunction. 

§  237.  In  cases  of  waste,  nuisance,  damages. 

§§  238-241.  In  various  other  cases. 

§  242.  Effect  of  the  reformed  procedure  on  the  doctrine. 

§  231. a    As  Applied  to  the   Concurrent  Jurisdiction. — 

The  rule  has  already  been  stated,  as  one  of  the  foundations 
of  the  concurrent  jurisdiction,  that  where  a  court  of  equity 
has  obtained  jurisdiction  over  some  portion  or  feature  of  a 
controversy,  it  may,  and  will  in  general,  proceed  to  decide 
the  whole  issues,  and  to  award  complete  relief,  although  the 
rights  of  the  parties  are  strictly  legal,  and  the  final  remedy 
granted  is  of  the  kind  which  might  be  conferred  by  a  court 
of  law.^  ^     This  principle  is,  however,  of  much  wider  appli- 

It  may  well,  then,  be  argued,  and  perhaps  held,  that  a  particular  jni-is- 
diction  which  had  belonged  to  chancery  courts  from  their  earliest  periods 
had  not  been  impliedly  abolished  by  statutes  whose  only  express  object 
was  to  alter  certain  rules  of  evidence.  The  doctrine  discussed  in  tlie 
text,  on  the  other  hand,  has  no  foundation  nor  'existence,  except  as  a 
special  result  of  those  ancient  rules  of  evidence  which  the  statute  lias 
changed.  Deduced  as  a  direct  consequence  from  those  prohibitory  rules, 
it  must,  as  it  seems  to  me,  fall  with  them. 
§  231,  1  See  ante,  §  181. 

§231,  (a)     Sections     231-242     are  Cases,  172  Fed.  792,  97  C.  C.  A.  214; 

cited    in    St.    Croix    Timber    Co.    v.  Settle  v.   Settle,   141    N.   C.  553.   54 

Joseph,  142  Wis.  55,  124  N.  W.  1049.  S.  E.  445;  Wade  v.  Major,  36  N.  D. 

§  231,   (b)  Quoted  in  Carmichael  v.  331,  L.  R.  A.  1917E,  633,  162  N.  W. 

Adams,  91  Ind.  526;  The  Salton  Sea  399,    dissenting   opinion;    quoted,    in 


§  232  EQUITY    JUKISPRUDENCE.  360 

cation,  extending  in  its  operation  to  both  the  concurrent 
and  the  exclusive  jurisdictions;  and  it  requires,  therefore, 
a  more  full  discussion.  In  its  application  to  the  concurrent 
jurisdiction,  this  principle  forms,  as  has  been  already 
shown,  one  of  the  very  foundations  upon  which  that  juris- 
diction sometimes  rests;  and  it  is  then  something  more 
than  merely  an  occasion  or  condition  of  fact  for  the  proper 
exercise  of  the  jurisdiction.  In  other  words,  where  the 
primary  rights  and  cause  of  action  of  the  complaining 
party  are  legal,  and  the  remedy  which  he  asks  and  obtains 
is  of  the  kind  given  by  courts  of  law,  the  concurrent  juris- 
diction of  equity  to  interfere  and  adjudicate  upon  the  con- 
troversy may  exist  by  virtue  of  this  principle ;  it  may  alone 
determine  the  inadequacy  of  legal  remedies  upon  which  the 
very  existence  of  the  concurrent  jurisdiction  always  de- 
pends. It  may  be  remarked  that  the  instances  in  which  the 
concurrent  jurisdiction  results  from  the  operation  of  this 
principle,  at  least  in  the  United  States,  are  most  frequently 
cases  of  accounting  or  of  discovery  followed  by  relief.^  e 

§  232.     As  Applied  in  the  Exclusive  Jurisdiction. — The 

principle  is  also  frequently  applied  in  cases  belonging  to 
the  exclusive  jurisdiction,  and  it  then  furnishes  an  occa- 
sion for  the  proper  exercise  of  that  jurisdiction  by  the 
granting  of  complete  final  relief  which  is  purely  equitable 
in  its  nature.  In  such  instances,  where  the  primary  rights 
and  interests  of  the  complaining  party  are  legal,  and  the 
court  has  jurisdiction  over  some  part  of  the  controversy, 
or  to  grant  some  partial  or  incidental  equitable  relief,  it 
may,  under  the  operation  of  this  principle,  and  generally 

§  231,  2  See  cases  cited  ante,  under  §  181. 

substance,   in   Shultz   v.   Shively.   72  land  Farm  &  Land  Co.   (Mo.  App.), 

Or.    450,    143    Pac.    1115.     Cited    in  190  S.  W.  419;  Castle  v.  Gleason,  35 

Field  V.  Holzman,  93  Ind.  205;  Freer  S.  D.  98,  150  N.  W.  895. 

V.   Davis,   52  W.  Va.   1,  94  Am.   St.  §231,   (c)   Quoted  in  Kansas   City 

Rep.    895,   43    S.   E.   164    (dissenting  N.   W.    R.   R.   Co.   v.   Caton,   9   Kan. 

opinion);    Collier    v.    Collier    (N.    J.  App.  272,  60  Pac.  544. 

E'q.),  33   Atl.   193;   Buckner  v.  Mid- 


361  JUEISDICTION    EMBEACES    WHOLE    MATTEE.  §  233 

will,  go  on  and  decide  all  the  issues,  and  award  the  final 
equitable  relief  which  is  necessary  to  meet  the  ends  of  jus- 
tice, and  which  belongs  to  the  exclusive  jurisdiction  of  the 
court.i  "While,  therefore,  the  same  general  doctrine,  ex- 
pressed in  the  same  formula,  is  equally  applicable  to  cases 
of  the  concurrent  and  of  the  exclusive  jurisdiction,  yet  its 
operation,  as  furnishing  a  ground  for  the  judicial  action, 
is  very  different  in  the  two  jurisdictions. 

§  233.  Limitations. — This  principle  is  not,  however,  uni- 
versal in  its  application,  either  to  the  concurrent  or  to  the 
exclusive  jurisdiction.  The  following  is  an  illustration  of 
the  limitation :  A  statute  of  Mississippi  gave  special  power 
to  the  court  of  chancery  to  entertain  suits  to  remove  a  cloud 
from  title  of  land,  where,  after  the  cloud  was  removed,  all 
the  right  and  estate  of  the  parties  would  be  strictly  legal, 
and  the  further  remedies  of  the  plaintiff  would  be  such  as 
are  always  obtainable  by  an  action  of  ejectment,  or  an  ac- 
tion for  use  and  occupation.^  It  has  been  held  that  in  an 
equitable  suit  brought  under  this  statute,  in  order  to  re- 
move a  cloud,  the  court  did  not  obtain  jurisdiction  to  go  on 

§232,  1  Jesus  College  v.  Bloom,  3  Atk.  2G2,  263,  Amb,  54;  Yates  v. 
Hambly,  2  Atk.  237,  360;  Ryle  v.  Haggle,  1  Jacob  &  W.  234,  237;  Corp'n 
of  Carlisle  v.  Wilson,  13  Ves.  276,  278,  279 ;  Adley  v.  Whitstable  Co.,  17 
Ves.  315,  324 ;  McKenzie  v.  Johnston,  4  Madd.  373 ;  Rathbone  v.  Warren, 
10  Johns.  587,  596;  King  v.  Baldwin,  17  Johns.  384,  8  Am.  Dec.  415; 
Cornelius  v.  Morrow,  12  Heisk.  630;  Farrar  v.  Payne,  73  111.  82,  91; 
Pratt  V.  Northam,  5  Mason,  95,  105;  Thompson  v.  Brown,  4  Johns.  Ch. 
619,  631-643;  Walker  v.  Morris,  14  Ga.  323,  325;  Handley's  Ex'r  v. 
Fitzhugh,  1  A.  K.  Marsh.  24;  Keeton  v.  Spradling,  13  Mo.  321,  323; 
State  of  Mo.  v.  McKay,  43  Mo.  594,  598;  Bonder's  Appeal,  57  Pa.  St. 
498,  502;  Sanborn  v.  Kittredge,  20  Vt.  632,  636,  50  Am.  Dec.  58;  Zetelle 
V.  Myers,  19  Gratt.  62,  67 ;  Ferguson  v.  Waters,  3  Bibb,  303 ;  Middletown 
B'k  V.  Russ,  3  Conn.  135,  140,  8  Am.  Dec.  164;  Isham  v.  Gilbert,  3  Am. 
Dec.  166,  170,  171;  Armstrong  v.  Gilchrist,  2  Johns.  Cas.  424,  430,  431; 
Hawley  v.  Cramer,  4  Cow.  717;  Oelrichs  v.  Spain,  15  Wall.  211,  228; 
Clarke  v.  White,  12  Pet.  178,  187,  188;  Hepburn  v.  Dunlop,  1  Wheat.  179, 
197;  Phelps  v.  Harris,  51  Miss.  789,  794;  EzeUe  v.  Parker,  41  Miss.  520, 
526,  527. 

§  233,  1  Miss.  Rev.  Code,  p.  541,  art.  8. 


§  233  EQUITY    JUEISPKUDENCE.  362 

and  decide  conflicting  claims  to  tlie  purely  legal  estate  in 
the  land,  or  award  possession,  or  a  recovery  of  rents  and 
profits,  all  of  which  belonged  to  the  cognizance  of  a  court  of 
law  in  an  action  of  ejectment.^  From  these  cases,  the  rule 
would  seem  to  result,  that  wherever  a  special  power,  not 
existing  as  a  part  of  the  general  jurisdiction,  is  conferred 
by  statute  to  grant  some  particular,  specified,  equitable 
remedy,  the  exercise  of  this  statutory  power,  in  a  suit 
brought  for  that  purpose,  does  not  draw  after  it  the  addi- 
tional power  to  decide  the  remaining  portions  of  a  contro- 
versy which  are  purely  legal,  and  to  determine  rights  and 
award  remedies  which  belong  specially  to  the  cognizance 
of  the  law  courts, — such,  for  example,  as  conflicting  legal 
titles  to  tracts  of  land,  and  recovery  of  possession,  or  of 
rents  and  profits.^' 

§  233,  2  Phelps  V.  Harris,  51  Miss.  789,  794;  Ezelle  v.  Parker,  41  Miss. 
520,  526,  527.  In  the  former  of  these  cases,  after  stating  the  objects  of 
such  suits,  and  what  the  plaintiff  must  show,  and  that  under  form  of  such 
suits  a  court  of  equity  cannot  assume  jurisdiction  to  try  mere  conflicting 
legal  titles  to  land,  Peyton,  C.  J.,  says  (p.  794)  :  "Hence  the  jurisdiction 
to  remove  clouds,  doubts,  and  suspicions  from  over  the  title  of  the  rightful 
owner  of  real  estate  conferred  by  the  statute  upon  the  court  of  chancery, 
does  not,  as  an  incident  to  it,  authorize  that  court  to  take  jurisdiction  of 
the  whole  controversy  in  relation  to  the  title  to  the  land,  the  right  of  pos- 
session, the  rents,  issues,  and  profits,  and  thus  usurp  the  jurisdiction 
belonging  to  the  courts  of  law."  In  Ezelle  v.  Parker,  41  Miss.  520,  Mrs. 
Parker,  a  married  woman,  had,  by  her  own  separate  deed,  in  which  her 
husband  did  not  join,  conveyed  land  owned  by  her  to  Ezelle,  who  had  paid 
for  it  in  confederate  money,  and  was  in  possession.  Mrs.  P.  and  her 
husband  sued  in  equity  to  cancel  such  deed  as  a  cloud  upon  Mrs.  P.'s  title, 
and  to  recover  possession  of  the  land,  and  for  an  account  of  the  rents  and 

§  233,   (a)  The  principle  appears  to  right,   for   the   purpose   of   complete 

be  much  more   sparingly  applied  by  relief."     Brown    v.    Edsall,    9    N.    J. 

the   courts   of   New   Jersey   than   by  Eq.    257;    Lodor    v.    McGovern,    48 

the  courts  of  other  states;  thus,  it  is  N.  J.  Eq.  275,  27  Am.  St.  Rep.  446, 

stated  that  "a  court  of  chancery  in  22  Atl.  199;  Collier  v.  Collier  (X.  J. 

this    state    has    never    adopted    the  Eq.),  33  Atl.  193.     See,  also,  Hubatka 

principle  that,   because   its   jurisdic-  v.  Maierhoefer   (N.  J.  Eq.),  65  Atl. 

tion  has  once  rightfully  attached,  it  1002. 
will  retain  the  cause  as  a  matter  of 


363  JURISDICTION    EMBRACES    WHOLE    MATTER.  §  234 

§  234.  Illustrations. — In  order  to  illustrate  the  operation 
of  the  general  principle,  and  to  show  the  variety  and  extent 
of  the  cases  in  which  it  has  been  applied,  I  add  a  consider- 
able number  of  examples,  most  of  which  are  taken  from 
American  decisions.  Where  a  plaintiff  has  demanded  and 
obtained  a  discovery  under  the  circumstances  described  in 
preceding  paragraphs,  it  is  well  settled  that  the  court  will 
go  on  and  decide  the  whole  controversy  and  grant  final  re- 
lief in  cases  involving  fraud  or  mistake,  and  in  those  where 
the  relief  consists  in  an  accounting  and  payment  or  dis- 
tribution, if  the  case  possesses  some  equitable  incident  or 
feature  which  might  have  brought  it  within  either  branch 
of  the  equitable  jurisdiction,  independent  of  the  fact  of  a 
discovery.!  How  far  some  American  courts  have  gone  be- 
yond this  limit,  and  have  assumed  to  apply  the  principle 
and  to  decide  all  the  issues,  after  a  discovery,  in  cases  pos- 
sessing no  other  equitable  feature  or  incident,  has  already 
been  fully  described. ^  The  particular  remedy  of  a  discov- 
ery is  also,  to  some  extent  at  least,  the  foundation  of  the 
established  jurisdiction  of  equity  over  the  administration 
of  the  personal  estates  of  deceased  persons.  It  has  fre- 
quently been  held  that  where  a  creditor,  or  a  legatee,  or  a 
distributee  brought  a  suit  in  equity  to  obtain  a  discovery 
of  assets  in  the  hands  of  the  personal  representatives,  the 
court,  having  thus  obtained  a  jurisdiction  of  the  matter 

profits.  Held,  that  the  court  would  set  aside  the  deed  as  a  cloud,  but 
could  not  go  on  and  deei'ee  a  recovery  of  possession  and  payment  of  the 
rents  and  profits.  The  latter  relief  could  be  obtained  only  by  an  action  at 
law. 

§234,  IHandley's  Ex'r.  v.  Fitzhugh,  1  A.  K.  Marsh.  24;  Sanborn  v. 
Kittredge,  20  Vt.  632,  636,  50  Am.  Dec.  58;  Chichester's  Ex'r  v.  Vass's 
Adm'r,  1  Munf.  98,  4  Am.  Dec.  531;  Ferguson  v.  Waters,  3  Bibb,  303; 
Middletown  Bk.  v.  Russ,  3  Conn.  135,  140,  8  Am.  Dec.  164;  Isham  v. 
GUbert,  3  Conn.  166,  170,  171;  Armstrong  v.  Gilchrist,  2  Johns.  Gas.  424, 
430,  431;  Hawley  v.  Cramer,  4  Cow.  717,  728;  but  see  Little  v.  Cooper, 
10  N.  J.  Eq.  273,  275 ;  Brown  v.  Edsall,  9  N.  J.  Eq.  256.  And  see  ante, 
§§  224-226. 

§  234,  2  See  ante,  §§  227-229. 


§  235  EQUITY    JUEISPRUDENCE.  3G4 

for  tills  special  purpose,  would  go  on  and  make  a  full  de- 
cree of  administration,  of  accounting  from  the  executors 
or  administrators,  and  of  final  settlement  and  distribu- 
tion.3  a 

§  235.  Altliougli  the  legislation  of  most  of  the  states 
has  either  expressly  or  practically  taken  the  general  juris- 
diction of  administration  from  the  courts  of  equity,  and  has 
conferred  it  upon  courts  of  probate  under  minute  statutory 
regulation,  still,  whenever  a  court  of  equity  takes  cogni- 
zance of  a  decedent's  estate  for  any  special  purpose,  or  to 
grant  any  special  relief  not  within  the  power  of  the  probate 
court,  such  as  the  construction  of  a  will,  the  setting  abide 
of  some  fraudulent  transaction  of  an  executor  or  adminis- 
trator, the  restraining  of  an  executor's  or  administrator's 
wrongful  acts  by  injunction,  and  the  like,  it  has  been  held  in 
many  states  that  the  court  of  equity,  having  thus  acquired 
a  jurisdiction  of  the  estate  for  this  particular  purpose. 
may  and  should,  notwithstanding  the  statutory  system,  go 

§  234,  3  Pratt  v.  Northam,  5  Mason,  95,  105 ;  Yates  v.  Hambly,  2  Atk. 
237,  360;  Jesus  College  v.  Bloom,  3  Atk.  262,  263,  per  Lord  Hardwieke; 
Thompson  v.  Brown,  4  Johns.  Ch.  619,  631,  643;  Pearson  v.  Darringlon, 
21  Ala.  169;  Walker  v.  Morris,  14  Ga.  323,  325;  Martin  v.  Tidwell,  36 
Ga.  332,  345;  Keeton  v.  Spradling,  13  Mo.  321,  323;  Gilliam  v.  Chancellor, 
43  Miss.  437,  448,  5  Am.  Rep.  498.  In  Pratt  v.  Northam,  5  Mason,  95, 
Story,  J.,  held  that  the  United  States  circuit  court,  as  a  court  of  equity, 
has  jurisdiction  in  a  suit  by  a  legatee  or  distributee  against  an  executor  or 
administrator  for  an  administration  and  settlement  of  the  estate,  under 
the  established  general  authority  of  chancery,  notwithstanding  any  local 
state  legislation  on  the  subject.  As  to  the  origin  of  this  jurisdiction  of 
chancery,  he  said  (page  105)  :  "The  original  gi'ound  seems  to  have  been 
that  a  creditor,  or  other  party  in  interest,  had  a  right  to  come  into 
chancery  for  a  discovery  of  assets,  and  being  once  rightfully  there,  he 
sliould  not  be  turned  over  to  a  suit  at  law  for  final  redress.  For  purposes 
of  complete  justice,  it  became  necessary  to  conduct  the  whole  administra- 
tion and  distribution  of  assets  under  the  superintendence  of  the  court  of 
chancery,  when  it  once  interfered  to  grant  relief  in  such  cases." 

§234,  (a)  The  text  is  cited  in  Sanders  v.  Soutter,  126  N.  Y.  193,  27 
N.  E.  263. 


365  JUKISDICTION    EMBRACES    WHOLE    MATTER.  §  235 

on  and  decree  a  complete  administration,  settlement,  and 
distribution  of  the  entire  estate,  in  the  same  manner  in 
which  it  would  have  proceeded  under  the  original  jurisdic- 
tion of  chancery  prior  to  the  legislation. ^  «•     In  some  of  the 

§  235,  1  Cowles  v.  Pollard,  51  Ala.  445,  447 ;  Youmans  v.  Youmans,  26 
N.  J.  Eq.  149,  154 ;  Pearson  v.  Darrington,  21  Ala,  169 ;  Walker  v.  Morris, 
14  Ga.  323,  325 ;  Martin  v.  Tidwell,  36  Ga.  332,  345 ;  Keeton  v.  Spradling, 
13  Mo.  321,  323;  Gilliam  v.  Chancellor,  43  Miss.  437,  448,  5  Am.  Rep. 
498.  Cowles  v.  Pollard,  51  Ala.  445,  is  a  very  important  ease  in  its 
bearing  upon  the  statutory  system  which  exists  in  many  states.  Peters, 
C.  J.,  said  (p.  447) :  "It  is  now  well  settled  in  this  state  that  when  the 
trusts  of  a  will  are  doubtful,  or  the  personal  representative  may  have 
difficulty  or  be  embarrassed  in  the  execution  of  such  trusts,  a  court  of 
equity  will  at  his  instance  take  jurisdiction  to  construe  the  will,  and  to 
aid  and  direct  the  executor  or  administrator  in  the  performance  of  his 
duties:  Sellers  v.  Sellers,  35  Ala.  235;  Trotter  v.  Blocker,  6  Port.  269. 
And  when  a  court  of  chancery  once  takes  jurisdiction  on  any  ground  of 
equitable  interposition,  the  cause  will  be  retained,  and  the  administration 
will  be  conducted  and  finally  settled  in  that  court:  Stewart  v.  Stewart, 
31  Ala.  207;  Wilson  v.  Crook,  17  Ala.  59;  Hunley  v.  Hunley,  15  Ala.  91. 
In  such  a  suit  the  chancellor  will  apply  the  law  regulating  the  conduct 
and  settlement  of  administrations  in  the  court  of  probate,  but  he  will  pro- 
ceed according  to  the  rules  and  practice  of  a  court  of  equity :  Hall  v. 
Wilson,  14  Ala.  295;  Taliaferro  v.  Brown,  11  Ala.  702."  In  Youmans 
V.  Youmans,  26  N.  J.  Eq.  149,  154,  it  was  also  held  that,  in  a  suit  to 
construe  a  will  and  for  directions  to  the  executor,  all  parties  interested 
being  joined,  the  court  would  go  on  and  adjust  and  finally  settle  the 
accounts  of  the  executor;  citing  Mallory  v.  Craige,  15  N.  J.  Eq.  73.  In 
Keeton  v.  Spradling,  13  Mo.  321,  323,  the  suit  was  brought  by  next  of 
kin  to  set  aside  a  decree  of  the  court  of  probate  obtained  by  the  admin- 
istrator through  fraud,  and  the  court  held  that  having  obtained  juris- 
diction for  this  particular  purpose,  it  would  go  on  and  give  full  relief 

§235,  (a)  The  text  is  quoted  in  such  relief  may  and  ean  only  be  ob- 
Settle  v.  Settle,  141  N.  C.  553,  54  tained  from  a  court  of  equity;  and 
S.  E.  445.  The  text  is  cited  and  that  in  an  action  brought  for  such 
followed  in  Sanders  v.  Soutter,  126  purpose  the  court,  in  the  exercise  of 
N.  Y.  193,  27  N.  E'.  263.  It  was  its  concurrent  jurisdiction  with  the 
there  held  that  a  surrogate's  court  surrogate's  court,  may  grant  full  re- 
has  no  power  to  annul  or  set  aside,  lief,  and  decree  an  accounting  by 
on  the  ground  of  fraud,  a  release  executors,  and  a  settlement  and  dia- 
executed  by  parties  interested  in  an  tribution  of  the  estate, 
estate  to  the  executors  thereof;  that 


§  235  EQUITY    JUKISPRUDENCE.  366 

states  this  power  of  a  court  of  equity  to  go  on  and  control 
the  entire  administration  of  the  estate  and  decree  a  final 
settlement  and  distribution,  whenever  it  has  thus  obtained 
a  jurisdiction  for  some  special  purpose,  is  doubtless  limited 
or  prohibited  by  the  statutes.  The  language  of  the  stat- 
ute conferring  general  power  over  the  whole  subject  of  ad- 
ministration upon  the  probate  court  is  so  broad,  minute, 
and  peremptory  that  the  general  powers  and  jurisdiction 
originally  belonging  to  chancery  over  the  settlement  of 
decedents'  estates  are  completely  taken  away,  and  are 
wholly  transferred  into  the  exclusive  cognizance  of  the  pro- 
bate court,  and  are  exercised  by  it  in  accordance  with  the 
minute  and  compulsory  provisions  of  a  statutory  system. 
In  these  states,  and  by  virtue  of  these  statutes,  if  a  court 
of  equity  obtains  jurisdiction  over  the  subject-matter  of  a 
decedent's  estate  for  any  special  purpose  not  within  the 
competency  of  the  probate  court,  such  as  the  construction 
of  a  will,  the  control  and  enforcement  of  a  trust,  the  can- 
cellation of  some  fraudulent  conveyance  made  by  an  execu- 
tor or  administrator,  and  the  like,  its  functions  will  be 

by  a  final  decree  for  an  accounting  by  the  administrator,  settlement  of 
the  estate,  and  distribution  of  the  assets.  GUliam  v.  Chancellor,  43  Miss. 
437,  448,  5  Am.  Rep.  498,  is  also  a  very  important  decision  respecting  the 
equity  powers  under  the  legislation  concerning  administration.  It  holds 
that  the  jurisdiction  given  by  the  Mississippi  statutes  to  the  probate 
court  is  exclusive,  and  the  court  of  chancery  is  thereby  deprived  of  its 
original  general  jurisdiction  over  administration;  citing  Blanton  v.  King, 
2  How.  (Miss.)  856;  Carmichael  v.  Browder,  3  How.  (Miss.)  252.  But 
whei'e,  as  in  this  case,  a  widow  claimed  under  an  antenuptial  contract 
with  her  husband,  and  also  a  legacy  given  by  his  will,  and  the  executor 
insisted  that  the  legacy  was  in  satisfaction  of  the  antenuptial  portion, 
the  court  held  that  equity  had  exclusive  jurisdiction  to  decide  the  widow's 
rights  under  the  antenuptial  agreement;  and  thus  having  jurisdiction  over 
a  portion  of  the  controversy,  the  court  would  decide  all  the  mattei's  in 
issue  between  her  and  the  executor  growing  out  of  the  will,  and  would 
enjoin  an  action  brought  by  her  in  the  probate  court  to  recover  the  legacy, 
and  would  determine  all  her  rights  and  claims  under  the  will  and  under 
the  nuptial  contract  in  the  one  equity  suit.  The  other  cases  cited  above 
all  maintain  the  doctrine  stated  in  the  text. 


367  JURISDICTION    EMBRACES    WHOLE    MATTER.  §  236 

limited  to  matters  whicli  are  necessary  to  render  this 
special  relief  complete  and  effectual ;  it  will  not  be  allowed 
to  go  on  to  a  full  and  final  administration  and  settlement 
of  the  estate  as  a  whole.  Such  administration  and  settle- 
ment, after  receiving  the  aid  of  the  special  relief  furnished 
by  the  decree  in  equity,  can  be  accomplished  by  the  pro- 
bate court  alone,  to  whose  exclusive  cognizance  they  have 
been  intrusted  by  the  statute.^ 

§  236.  Another  extensive  class  of  cases  in  which  the 
principle  has  been  applied  embraces  suits  brought  to  en- 
join the  further  prosecution  of  a  pending  action  at  law, 
or  the  enforcement  of  a  judgment  recovered  at  law,  either 
on  the  ground  of  some  equitable  defense  not  cognizable 
by  the  law  court,  or  on  the  ground  of  some  fraud,  mistake, 
ignorance,  or  other  incident  of  the  trial  at  law,  which  ren- 
dered the  legal  judgment  inequitable.  In  such  cases  the> 
court  of  equity,  having  obtained  jurisdiction  of  the  cause 
for  the  purpose  of  an  injunction,  may  decide  the  whole 
controversy  and  render  a  final  decree,  even  though  all  the 
issues  are  legal  in  their  nature,  capable  of  being  tried  by 
a  court  of  law,  and  the  legal  remedies  therefor  are  ade- 
quate.^  ^    In  fact,  the  rule  is  more  general  still  in  its  opera- 

§  235,  2  Gilliam  v.  Chancellor,  43  Miss.  437,  448,  5  Am.  Rep.  498,  and 
cases  cited.  This  seems  to  be  the  system  prevailing  in  a  considerable 
number  of  states. 

§  236,  1  Cornelius  v.  Morrow,  12  Heisk.  630 ;  Mays  v.  Taylor,  7  6a. 
238,  243,  244;  Rust  v.  Ware,  6  Gratt.  50,  52  Am.  Dec.  100;  Billups  v. 
Sears,  5  Gratt.  31,  37,  38,  50  Am.  Dec.  105 ;  Parker  v.  Kelly,  10  Smedes 
&  M.,  184;  Oelriehs  v.  Spain,  15  Wall.  211,  228.  In  the  very  recent 
case  of  Cornelius  v.  Morrow,  12  Heisk.  630,  which  was  a  suit  to  enjoin 

§236,  (a)  Suits  to  Enjoin  Actions  §§  236-240    are    cited    in    Hagen    v. 

or  Judgments — Full  Relief. — Cited  in  Lyndonville    Nat.    Bk.,    70   Vt.    543, 

Coons  V.  Coons,  95  Va.  434,  64  Am.  556,    67   Am.    St.   Eep.   680,   689,   41 

St.   Rep.   804,   28   S.  E.   885;   United  Atl.  1046, 1051.     See,  also,  Ducktown, 

States  Min.  Co.  v.  Lawson,  115  Fed.  S.  C,  &  S.  Co.  v.  Barnes  (Tenn.),  60 

1005;   Fife   v.   Gate,   85   Vt.   418.   82  S.  W.  593;  W.  V.  Davidson  Lumber 

Atl.    741     (although    the    injunction  Co.    v.   Jones    (Tenn.    Ch.    App.).    62 

covers  only  part  of  the  controversy).  S.  W.  386;  Hickman  v.  White  (Tex. 


§  236  EQUITY   JURISPRUDENCE.  368 

tion,  and  extends  to  all  suits  brought  to  obtain  the  special 
relief  of  injunction,  and  is  not  confined  to  suits  for  the 
purpose  of  enjoining  actions  or  judgments  at  law.     It  may 

a  judgment  recovered  at  law  by  default,  on  a  note,  it  was  held  that  where 
defendant  at  law  has  a  legal  defense  available  at  law,  but  not  free  from 
difficulty  in  its  establishment,  and  a  second  defense  wholly  equitable,  he 
may  resort  to  equity  at  once,  enjoin  the  action  or  judgment  at  law,  and 
have  all  the  issues  tried  in  the  equity  suit.  In  Mays  v.  Taylor,  7  Ga. 
238,  243,  244,  which  was  a  suit  to  enjoin  a  judgment  at  law  and  the 
execution  thereon,  on  the  ground  that  the  judgment  creditor  had  violated 
an  agreement  made  with  the  complainant  (the  judgment  debtor)  concern- 
ing the  issuing  of  an  execution  and  the  enforcement  of  the  judgment,  the 
court  held  that  the  complainant  could  have  had  an  adequate  remedy  at 
law  by  an  action  for  damages  for  the  breach  of  such  agreement,  but 
still,  as  equity  had  jurisdiction  for  the  purpose  of  enjoining  the  execution, 
the  court  would  retain  and  decide  the  whole  cause,  and  grant  full  relief  to 
the  complainant.  It  therefore  decreed  that  defendant  should  repay  all 
the  money  which  had  been  collected  on  the  execution  in  violation  of  the 
agreement.**  In  Rust  v.  Ware,  6  Gratt.  50,  52  Am.  Dec.  100,  which  was 
a  suit  to  enjoin  a  judgment  at  law  on  ground  of  a  palpable  mistake  by 
the  jury  and  newly  discovered  evidence,  it  was  held  that  as  the  court 
had  a  jurisdiction  to  enjoin  the  judgment,  it  would  retain  and  decide  the 
whole  cause  on  the  merits,  and  not  send  it  back  for  a  new  trial  at  law. 
In  Billups  V.  Sears,  5  Gratt.  31,  37,  38,  50  Am.  Dec.  105,  the  facts  were 
similar  and  the  ruling  the  same. 

Civ.  App.),  29   S.  W.  692;   Houston  possession    have    been    retained    for 

Rice   Milling    Co.    v.    Hankamer,   43  full  relief.     Probert  v.  McDonald,  2 

Tex.   Civ.   App.   576,   97   S.   W.   119;  S.   D.   495,  39  Am.   St.  Rep.   796,  51 

Butler    V.    Scottish-American    Mort-  N.   W.   212;   Leighton   v.   Young,   52 

gage  Co.,  93  Miss.  215,  46  South.  829.  Fed.  439,  18  L.  R.  A.  266,  3  C.  C.  A. 

In    Gulf,    C.    &   S.   F.    R.    R.    Co.    v.  176,    10    U.    S.    App.    298.     Compare 

Schneider  (Tex.  Civ.  App.),  28  S.  W.  Deepwater  R.   Co.   v.  D.  H.  Motter 

260,  an  injunction  was  issued  against  &   Co.,   60    W.   Va.   55,   116   Am.    St. 

the  enforcement  of  a  judgment  of  a  Rep.  873,  53  S.  E.  705  (A  sues  B  on 

justice   of  the   peace,  bul  the  court  contract,   and   A's   creditors   garnish 

retained  the  case  to  try  the  original  B;  injunction  on  B's  behalf  against 

cause  of  action,  although  the  amount  the    creditors    should   not   draw   A's 

involved  was  less  than  the  limit  of  suit   into   equity,   as   it   ia   an   inde- 

jurisdiction.     In  Coons  v.  Coons,  95  pendent    matter    and    can    best    be 

Va.    434,    64    Am.    St.    Rep.    804,    28  tried  by  jury). 

S.  E.  885,  it  was  held  that  a  hill  to  §236,    (b)    See,    also,    the   similar 

enjoin  an  award  of  arbitrators  may  case,  Everett  v.  Tabor,  127  Ga.  103, 

be  retained  for  legal  relief.     Bills  to  119  Am.  St.  Rep.  324,  56  S.  E'.  123. 
enjoin  execution  sales  and  writs  of 


3G9  JUKISDICTION    EMBRACES    WHOLE    MATTER.  §  236 

be  stated  as  a  general  proposition,  that  wherever  the 
court  of  equity  has  jurisdiction  to  grant  the  remedy  of  in- 
junction for  some  special  purpose,  even  though  the  injunc- 
tion covers  only  a  portion  of  the  controversy,  it  may  go  on 
and  decide  all  the  issues,  and  make  a  final  decree  granting 
full  relief.2  c 

§  236,  2  People  v.  Chicago,  53  111.  424,  428 ;  Armstrong  v.  Gilchrist,  2 
Johns.  Cas.  424,  430,  431;  Jesus  College  v.  Bloom,  3  Atk.  262,  263,  per 
Lord  Hardwicke.  People  v.  Chicago,  53  111.  424,  428,  is  a  strong  case. 
A  statute  required  that  all  the  proceedings  of  the  city  common  council 
should  be  published  in  the  German  newspaper  having  the  largest  circula- 
tion. The  common  council  designated  a  certain  German  newspaper.  Tlie 
owners  of  another  paper  claimed  to  be  entitled,  and  brought  a  suit  in 
chancery  against  the  city  officers  and  the  designated  paper,  praying  an 
injunction  and  general  relief.  The  court  held  "that  while  there  may  be 
grave  doubts  whether  a  court  of  equity  would  take  jurisdiction  for  the 
mere  purpose  of  compelling  the  proper  execution  of  the  statute  in  ques- 
tion on  the  part  of  the  common  council,  yet,  having  acquii'ed  jurisdiction 
for  a  purpose  clearly  within  the  province  of  a  court  of  chancery, — that 
of  awarding  an  injunction,^ — it  may  retain  the  bill  for  the  purpose  of 
ascertaining  and  enforcing  all  the  rights  of  the  parties  properly  involved 

§  236,  (c)  Injunction  Suits,  in  Gen-  Bessemer  Irr.  Ditch  Co.  v.  WtooUey 

eral:    Retaining  Jurisdiction. — Cited  (Colo.),  76  Pac.  1053;  My  Laundry 

in   Danielson   v.   Gude,   11    Colo.    87,  Co.  v.  Schmeliiig,   129  Wis.  597,  109 

17   Pac.   283;    Richi   v.    Cliattanooga  N.   W.   540    (damages   in   connection 

Brewing  Co.,  105  Tenn.  651,  58  S.  W.  with    injunction    against    breach    of 

646;   quoted.   Freer  v.  Davis,  52   W.  covenant  not  to  engage  in  competing 

Va.  1,  94  Am.  St.  Rep.  895,  59  L.  R.  A.  business).     But  see  Graeff  v.  Felix, 

556,  43   S.   E.   164    (dissenting   opin-  200  Pa.   St.   137,  49  Atl.  758,  where 

ion) ;  Garden  City  Sand  Co.  v.  South-  complainant  sought  to  enjoin  parties 

ern    Fire    Brick    and    Clay    Co.,    260  claiming  to  be  water  commissioners 

111.   231,   Ann.   Cas.   1914D,   173,   103  from  purchasing  land  on  the  ground 

N.    E.    207    (injunction    against    re-  that   they  were   no   longer  in   office, 

moving  clay   from  land  with  notice  The   court   held   that   the   main  pur- 

of  plaintiff's  prior   contract  to   take  pose   of  the  bill  was  to  try  title  to 

the  clay,  damages  awarded  as  inei-  office,   and   that  it   would   not   take 

dent  to  injunctio'n).     See,  also,   Na-  jurisdiction.     "It    is    quite    true,    as 

tional  Docks  &  N.  ,T.  J.  C.  E.  R.  Co.  held    by    the    learned    judge    below, 

v.  Penn.  R'y  Co.,  54  N.  J.  E'q.  10,  33  that   equity,   having   acquired   juris- 

Atl.    219;     Gaffey    v.    Northwestern  diction    of    a    case,    may    decide    all 

Mut.  Life  Ins.  Co.   (Neb.),  98  N.  W.  matters  incidentally  connected  with 

826;   Getheil  Park  Inv.  Co.  v.  Town  it,  so  as  to  make  a  final  determina- 

of  Montclair   (Colo.),  76   Pac.   1050;  tion  of  the  whole   subject;  but  this 
1—24 


§  237  EQUITY    JURISPRUDENCE.  370 

§  237.  Particular  instances  of  the  operation  of  the  above 
general  rule  concerning  the  remedy  of  injunction  may  be 
seen  in  the  cases  of  waste  and  of  private  nuisance.  Origi- 
nally the  jurisdiction  over  cases  of  waste  was  confined  to 
courts  of  law;  the  legal  remedy  by  action  for  damages  was 
regarded  as  adequate,  and  as  the  only  remedy.  The  same 
was  true  of  private  nuisance.  In  time  it  was  felt  that  this 
merely  compensatory  relief  was  insufficient  under  some  cir- 
cumstances, and  that  a  preventive  remedy  was  necessary'  to 
the  ends  of  justice.  Equity  therefore  assumed  a  jurisdic- 
tion to  grant  an  injunction  restraining  the  commission  of 
actual  or  threatened  waste;  and  having  obtained  jurisdic- 
tion for  the  purpose  of  awarding  this  special  relief,  which, 
in  many  instances,  is  not  complete,  the  court  will  retain  the 
cause,  and  decree  full  and  final  relief,  including  damages, 
and  when  necessary,  an  abatement  of  whatever  creates  the 

in  the  subject-matter  of  the  controversy."  In  Armstrong  v.  Gilchrist,  2 
Johns.  Cas.  424,  430,  431,  the  general  doctrine  was  thus  stated  by  Rad- 
cliffe,  J.,  and  Kent,  C.  J.  (pp.  430,  431)  :  "The  court  of  chancery,  having 
acquired  cognizance  of  the  suit  for  the  purpose  of  discovery  or  injunction, 
will,  in  most  cases  of  account,  whenever  it  is  in  full  possession  of  the 
merits,  and  has  sufficient  materials  before  it,  retain  the  suit,  in  order  to 
do  full  justice  between  the  parties,  and  to  prevent  useless  litigation  and 
expense."  In  the  well-known  case  of  Jesus  College  v.  Bloom,  3  Atk.  262, 
263,  Lord  Hardwioke,  speaking  of  the  principle  under  discussion,  said: 
"So  in  bills  for  an  injunction,  the  court  will  make  a  complete  decree, 
and  give  the  party  a  satisfaction,  and  not  oblige  him  to  bring  an  action 
at  law  as  well  as  a  bill  here." 

rule  does  not  extend  to  a  ease  where  ferentially."  And  for  a  similar  in- 
only  some  incidental  matter  is  of  stance,  see  Broadis  v.  Broadis,  86 
equitable  cognizance,  and  thereby  Fed.  951,  citing  text,  §§  231-242.  In 
enable  the  court  to  draw  in  a  main  a  suit  to  enjoin  unfair  competition, 
subject  of  controversy  which,  has  a  it  was  held,  in  New  Jersey,  improper 
distinct  and  appropriate  legal  rem-  to  award  damages  in  addition  to  an 
edy  of  its  own.  That  is  the  present  accounting  of  profits:  L.  Martin  Co. 
case.  The  only  subject  of  equitable  v.  L.  Martin  &  Wilckes  Co.,  75  N.  J. 
cognizance  in  the  case  is  found  in  Eq.  257,  20  Ann.  Cas.  57,  21  L.  R.  A. 
the  contemplated  purchase,  which  is  (N.  S.)  526,  72  Atl.  294.  reversing 
a  mere  incident  to  the  main  purpose  75  N.  J.  Eq.  39,  71  Atl.  409. 
of  the  bill,  and  is  only  pleaded  in- 


371 


JUEISDICTION    EMBRACES    WHOLE    MATTER. 


§237 


waste  or  causes  the  nuisance. ^  '^     The  same  description  will 
apply  to  all  cases  of  private  nuisance  in  which  a  court  of 

§  237,  1  Jesus  College  v.  Bloom,  3  Atk.  262,  263.  This  was  a  suit  for 
an  account  of  waste  and  payment  of  whatever  was  found  due,  no  injunc- 
tion being  asked  for.  Held,  that  the  suit  could  not  be  maintained  unless 
an  injunction  was  prayed.  Lord  Hardwicke  said  (p.  263)  :  "The  ground 
of  coming  into  this  court  is  to  stay  waste,  and  not  for  the  satisfaction  for 
the  damages,  but  for  a  i^revention  of  the  wrong,  which  courts  of  law  can- 
not do  in  those  instances  where  a  writ  of  prohibition  of  waste  will  not  be 
granted.  But  in  all  these  cases  the  court  has  gone  further,  mainly  upon 
the  maxim  of  preventing  a  multiplicity  of  suits,  which  is  the  reason  that 
determines  this  court  in  many  eases." 


§237,  (a)  The  text  is  quoted  in 
United  States  v.  Denver  &  Rio 
Grande  R.  Co.,  190  Fed.  825  (waste 
on  public  lands) ;  The  Salton  Sea 
Cases,  172  Fed.  792,  97  C.  C.  A.  214. 
This  section  is  cited  generally  in 
Robinson  v.  Appleton,  124  111.  276, 
15  N.  E.  761;  In  re  Leeds  Woolen 
Mills,  129  Fed.  922. 

Injunction  Against  Trespass  and 
Waste;  Retaining  Jurisdiction  for 
Damages,  etc. — "Where  a  bill  shows 
cause  for  equitable  relief  by  injunc- 
tion to  stay  destructive  and  contin- 
uous trespass  in  the  nature  of  waste, 
the  court  will  decree  an  account  and 
satisfaction  for  the  injuries  already 
done."  (U.  S.  v.  Guglard,  79  Fed. 
21,  citing  text,  §§  231-237.  See,  also, 
Peck  V.  Ayers  &  Lord  Tie  Co.,  116 
Fed.  273,  53  C.  C.  A.  551,  where  the 
court  retained  the  bill  to  try  title. 
The  principle  applies  to  suits  to  en- 
join continuing  trespasses.  Brown 
V.  Solary,  37  Fla.  102,  19  South.  161; 
W/atson  V.  Watson,  45  W.  Va.  290, 
31  S.  E.  939.  See,  also,  Chicot  Lum- 
ber Co.  V.  Dardell,  84  Ark.  140,  104 
S.  W.  1100  (damages  on  cross-com- 
plaint, for  cutting  of  timber  by 
plaintiff  pending  suit);  Atlantic  & 
C.  Air  Line  Ry.  Co.  v.  Victor  Mfg. 


Co.,  79  S.  C.  266,  60  S.  E.  675.  But 
it  has  been  held  that  while  the 
legislature  may  authorize  an  injunc- 
tion against  simple  acts  of  trespass, 
it  cannot  authorize  the  assessment 
of  damages  in  actions  to  enjoin  such 
acts  of  trespass  which  would  not 
have  come  within  the  cognizance  of 
chancery  courts  independently  of 
statute.  Wiggins  v.  Williams,  36 
Fla.  637,  30  L.  B.  A.  754,  18  South. 
859;  McMillan  v.  Wiley  (Fla.),  33 
South.  992.  The  question  of  retain- 
ing jurisdiction  to  award  damages  in 
cases  of  injunction  against  continu- 
ing trespass  is  carefully  examined  in 
Lynch  v.  Metropolitan  El.  R'y  Co., 
129  N.  Y.  274,  26  Am.  St.  Rep.  523, 
15  L.  R.  A.  287,  29  N.  E.  315,  where 
it  is  held  that  the  amount  of  such 
damages  does  not  present  an  issue 
upon  which  the  parties  are  entitled 
to  a  trial  by  jury;  citing  Williams  v. 
New  York  Cent.  R.  R.  Co.,  16  N.  Y. 
97,  69  Am.  Dec.  651;  Henderson  v. 
New  York  Cent.  R.  R.  Co.,  78  N.  Y. 
423;  Shepard  v.  Manhattan  R'y  Co., 
117  N.  Y.  442,  23  N.  E.  30,  and  other 
cases.  In  Whipple  v.  Village  of 
Fair  Haven,  63  Vt.  221,  21  Atl.  533, 
the  court  took  jurisdiction  to  en- 
join   a    town    from    draining    on    to 


§  237  EQUITY    JUKISPRUDENCE.  372 

equity  may  have  jurisdiction  to  interfere  by  injunction. ^  ^ 
There  are  some  other  instances,  in  addition  to  those  of  in- 
junction, waste,  nuisance,  and  continuous  or  irreparable 
trespass,  where  equity,  having  obtained  jurisdiction  for 
some  particular  purpose,  will  complete  the  possible  relief 
by  decreeing  damages;  but  this  application  of  the  prin- 
ciple is  not  general;  on  the  contrary,  it  is  rather  excep- 
tional. The  award  of  mere  compensatory  damages,  which 
are  almost  always  unliquidated,  is  a  remedy  peculiarly 
belonging  to  the  province  of  the  law  courts,  requiring  the 
aid  of  a  jury  in  their  assessment,  and  inappropriate  to  the 
judicial  position  and  functions  of  a  chancellor.  It  may  be 
stated,  therefore,  as  a  general  proposition,  that  a  court  of 
equity  declines  the  jurisdiction  to  grant  mere  compensatory 
damages,  when  they  are  not  given  in  addition  to  or  as  an 
incident  of  some  other  special  equitable  relief,  unless  under 
special  circumstances  the  exercise  of  such  jurisdiction  may 
be  requisite  to  promote  the  ends  of  justice. <^     There  are, 

§  237,  2  Additional  instances  of  nuisance  and  of  waste  will  be  found 
in  the  next  subsequent  section  on  preventing  a  multiplicity  of  suits. 

complainant's     land,     and     then    re-  (in    suit    by   state    to    enjoin   liquor 

tained  the  bill  to  award  damages.  nuisance,  may  render    judgment  for 

In  Parker  v.  Shannon,  114  111.  192,  the  statutory  penalties).     See,  also, 

28  N.  E.  1099,  it  was  held,  however,  Cobia  v.  Ellis,  149  Ala.  108,  42  South, 

that  chancery  will  not  try  the  title  751  (damages  in  suit  to  enjoin  diver- 

to  land,  on  having  acquired  jurisdic-  sion  of  water) ;  Barnett  v.  Tedescki, 

tion,    merely    to    enjoin    waste    tem-  154  Ala.  474,  45  South.  904  (in  suit 

porarily  while   the  legal   title  is   in  to    abate    bawdy-house    as    a    nui- 

dispute.     To    the    same    effect,    see  sance);  but  see  Norton  v.  Colusa  P. 

Freer  v.  Davis,  52  W.  Va.  1,  94  Am.  M.  &  S.  Co.,  167  Fed.  202. 

St.    Rep.    895,   59   L.   E.   A.    556,   43  §237,    (c)    The   text   is   quoted   in 

S.  E.  164.  Sadlier   v.    City   of   New   York,    185 

§237,  (b)  Injunction  Against  Nul-  N.  Y.  408,  78  N.  E.  272;  and  cited 

sance. — Cited  to  this  effect  in  Fleish-  in    Manville    Covering    Co.    v.    Bab- 

ner  v.  Citizens'  E.  E.  &  I.  Co.,  25  Or.  cock,  28  E.  I.  496,  14  L.  R.  A.  (N.  S.) 

119,  35  Pac.  174;  Morris  v.  Bean,  123  900,  68  Atl.  421. 

Fed.  618  (suit  to  restrain  diversion  Damages,  Without  Other  Relief, 
of  water) ;  Eichi  v.  Chattanooga  Rarely  Awarded. — Accordingly,  ex- 
Brewing  Co.,  105  Tenn.  651,  58  S.  W.  cept  in  the  instances  stated  below  in 
646;  State  v.  Marshall,  100  Miss.  626,  the  text  and  notes,  a  case  will  not 
Ann.  Cas.  1914A,  434,  56  South.  79.2  be  retained  when  no   right  to  equi- 


373 


JURISDICTION   EMBBACES   WHOLE    MATTER. 


§237 


however,  special  circumstances  in  which  the  principle  un- 
der discussion  is  invoked  and  is  extended  to  the  award  of 


table  relief  is  made  out.  "If  such. 
a  procedure  could  be  tolerated,  a 
party  having  an  action  maintainable 
at  law,  but  which  he  would  prefer 
not  to  have  presented  to  the  con- 
sideration of  a  jury,  could  quite  fre- 
quently so  frame  his  pleadings  as  to 
entitle  him  to  go  to  trial  before  the 
court  on  its  equity  side,  and  then 
claim  the  right  to  have  the  court 
award  the  damages  in  violation  of 
the  constitutional  guaranty  of  a 
right  of  trial  by  jury."  Green  v. 
Stewart,  45  N.  Y.  Supp.  982.  19  App. 
Div.  201.  Thus,  "when  an  action  at 
law  is  sought  to  be  restrained  by 
suit  in  equity,  and  part  of  the 
grounds  on  which  the  bill  rests  are 
purely  of  equitable  cognizance,  and 
part,  when  considered  separately, 
are  strictly  of  legal  cognizance,  and 
the  proofs  do  not  establish  the  alle- 
gations which  are  of  purely  equi- 
table cognizance,  a  court  of  equity 
has  not  jurisdiction  to  further  re- 
strain the  action  at  law,  and  pro- 
ceed to  determine  the  legal  rights 
of  the  parties."  Collier  v.  Collier 
(N.  J.  Eq.),  33  Atl.  193.  See,  also, 
Dugan  V.  Cureton,  1  Ark.  (1  Pike) 
31,  31  Am.  Dec.  727;  Eoddy  v.  Cox, 
29  Ga.  298,  74  Am.  Dec.  64;  Boon- 
ville  Nat.  Bank  v.  Blake,  166  Ind. 
427,  76  N.  E.  529  (where  bill  can  be 
maintained  only  on  theory  of  con- 
spiracy, and  no  conspiracy  proved, 
not  retained  for  legal  relief) ;  Barnes 
v.  N.  Eoy  &  Son,  27  R.  I.  534,  65 
Atl.  277  (where  bill  for  injunction 
by  public  scavenger  to  restrain 
others  from  removing  dead  animals 
from  streets  fails,  court  will  not 
retain  bill  to  award  mere  money 
damages);  Rock  County  v.  Weirick, 


143  Wis.  500,  128  N.  W.  94.  The 
subject  is  considered  in  the  mono- 
graphic notes  to  Deepwater  R.  Co. 
V.  D.  H.  Hotter  &  Co.,  60  W.  Va. 
55,  116  Am.  St.  Rep.  873,  877-880,  53 
S.  E.  705;  and  to  .Johnston  &  Grom- 
mett  Bros.  v.  Bunn,  IDS  Va.  490,  19 
L.  R.  A.  (N.  S.)  1064  et  seq.,  62  S.  E. 
341.  In  Crowell  v.  Young  (Ind.  T.), 
64  S.  W.  607,  it  was  held  that  a 
money  judgment  cannot  be  given 
upon  a  bill  for  foreclosure  when  the 
right  to  equitable  relief  is  not  made 
out;  but  see  Johnston  &  Grommett 
Bros.  v.  Bunn,  108  Va.  490,  19 
L.  R.  A.  (N.  S.)  1064,  62  S.  E.  341. 
In  Bittenbender  v.  Bittenbender,  185 
Pa.  St.  135,  39  Atl.  838,  the  com- 
plainant failed  in  a  bill  to  annul  a 
contract  for  the  dissolution  of  a 
partnership.  It  was  held  that  the 
bill  would  not  be  retained  for  the 
purpose  of  working  out  the  equities 
under  the  contract.  In  Toplitz  v. 
Bauer,  49  N.  Y.  Supp.  840,  26  App. 
Div.  125,  the  court  refused  to  set 
aside  an  assignment  of  an  insurance 
policy  for  fraud.  It  was  held  that 
the  bill  should  not  be  retained  to 
award  damages.  On  the  general 
principle,  see,  also,  Alger  v.  Ander- 
son, 92  Fed.  696,  and  eases  there  re- 
viewed; Kinsey  v.  Bennett,  37  S.  C. 
319,  15  S.  E.  965;  Boston  Blower  Co. 
V.  Carman  Lumber  Co.,  94  Va.  94.  26 
S.  E.  390;  Hawes  v.  Dobbs,  18  N.  Y. 
Supp.  123;  Whyte  v.  Builders  League, 
54  N.  Y.  Supp.  822,  35  App.  Div. 
480;  Vincent  v.  Moriarty,  52  N.  Y. 
Supp.  519;  Dowell  v.  Mitchell.  105 
U.  S.  430;  Lamb  Knit  Goods  Co.  v. 
Lamb,  119  Mich.  568,  78  N.  W.  646; 
Miller  v.  St.  Louis  &  K.  C.  E.  Co., 
162   Mo.   424,   63   S.  W.   85;   Gamage 


§237 


EQUITY   JURISPRUDENCE. 


374 


mere  damages.*^  If  a  court  of  equity  obtains  jurisdiction 
of  a  suit  for  the  purpose  of  granting  some  distinctively- 
equitable  relief,  such,  for  example,  as  the  specific  perform- 
ance of  a  contract,  or  the  rescission  or  cancellation  of  some 
instrument,  and  it  appears  from  facts  disclosed  on  the 
hearing,  but  not  known  to  the  plaintiff  when  he  brought 
his  suit,  that  the  special  relief  prayed  for  has  become  im- 
practicable, and  the  plaintiff  is  entitled  to  the  only  alter- 
native relief  possible  of  damages,  the  court  then  may,  and 
generally  will,  instead  of  compelling  the  plaintiff  to  incur 
the  double  exj^ense  and  trouble  of  an  action  at  law,  retain 
the  cause,  decide  all  the  issues  involved,  and  decree  the 
payment  of  mere  compensatory  damages. ^  ® 

§  237,  3  Holland  v.  Anderson,  38  Mo.  55,  58 ;   Wiswall  v.  McGovern, 
2  Barb.  270;  Cuff  v.  Borland,  56  Barb.  481.     Holland  v.  Anderson,  38 


V.  Harris,  79  Me.  531,  11  Atl.  422; 
Ahl's  Appeal,  129  Pa.  St.  49,  18  Atl. 
475,  477;  Kerlin  v.  Knipp,  207  Pa. 
St.  649,  57  Atl.  34. 

Exemplary  or  Punitive  Damages 
not  awarded  in  equity:  See  Karns  v. 
Allen,  135  Wis.  48,  15  Ann.  Cas.  543, 
115  N.  W.  357. 

§237,  (d)  The  text  is  quoted  in 
Sadlier  v.  City  of  New  York,  185 
N.  Y.  408,  78  N.  K  272. 

§237,  (e)  Alternative  Relief  of 
Damages,  When  Special  Relief  Fa;ls. 
Cited  with  approval  in  Blair  v. 
Smith,  114  Ind.  114,  5  Am.  St.  Rep. 
593,  15  N.  E.  817;  Koberts  v. 
Leutzke,  39  Ind.  App.  577,  78  N.  E. 
635  (cancellation  of  note);  .Johnson 
V.  Carter,  143  Iowa,  95,  120  N.  W. 
320  (cancellation  of  conveyance  for 
fraud);  Martin  v.  Martin,  44  Kan. 
295,  24  Pac.  418;  Sprinkle  v.  Well- 
born, 140  N.  C.  163,  111  Am.  St.  Rep. 
827,  3  L.  R.  A.  (N.  S.)  174,  52  S.  E. 
666  (cancellation  of  deed  of  insane 
grantor) ;  Van  Dusen  v.  Bigelow 
(N.  D.),  100  N.  W.  723  (damages  as 


alternative  relief  to  cancellation  and 
reconveyance);  Luetzke  v.  Eoberts,. 
130  Wis.  97,  109  N.  W.  949  (cancella- 
tion of  notes);  quoted  in  Cole  v. 
Getzinger,  96  Wis.  559,  71  N.  W. 
75;  quoted  also  in  Muskingum 
County  Com'rs  v.  State,  7S  Ohio  St. 
287,  85  N.  E.  562  (specific  perform- 
ance); Wright  V.  Chandler  (Tex. 
Civ.  App.),  173  S.  W.  1173  (suit  for 
cancellation  of  notes  which,  have  got 
into  the  hands  of  bona  fide  pur- 
chasers retained  for  damages);  Het- 
rick  v.  Gcrlinger  Motor  Car  Co.,  84 
Or.  133,  164  Pac.  379  (same).  See, 
also.  Van  Rensselaer  v.  Van  Rens- 
selaer, 113  N.  Y.  208,  21  N.  E.  75. 
In  the  author's  note  are  rules  as  to 
specific  performance.  The  text  is 
applicable  to  other  actions.  Thus, 
in  Bigelow  v.  Town  of  Washburn,  98 
Wis.  553,  74  N.  W.  362,  a  suit  was 
brought  to  enjoin  the  collection  of 
a  tax.  Pending  the  suit,  an  officer 
levied  on  the  property,  and  to  pre- 
vent a  sale  the  tax  was  paid.  It  was 
held  that  the  court  would  retain  the 


375 


JURISDICTION    EMBRACES    WHOLE    MATTER. 


§238 


§  238.     The  extent  and  operation  of  the  general  principle 
are  also  illustrated  by  the  following  instances,  which  do 

Mo.  55,  was  a  suit  by  the  vendee  to  cancel  a  contract  for  the  sale  of 
land,  on  the  ground  of  the  vendor's  fraud.  A  rescission  was  found  to  be 
impossible,  because  the  property  had  been  changed,  and  the  parties  could 
not  be  restored  to  their  original  condition.  The  general  doctrine  was 
staled  that  "a  court  of  equity  will  sometimes  give  damages,  which  are  gen- 
erally only  recoverable  at  law,  in  lieu  of  equitable  relief,  when  it  has 
obtained  jurisdiction  on  other  grounds."  The  application  of  the  prin- 
ciple to  the  relief  of  damages  has  frequently  occurred  in  suits  for  a 
specific  performance.  The  following  rules  have  been  established  by  Amer- 
ican decisions :  If  through  a  failure  of  the  vendor's  title,  or  any  other 
cause,  a  specific  performance  is  really  impossible,  and  the  vendee  is 
aware  of  the  true  condition  of  affairs  before  and  at  the  time  he  brings 
his  suit,  the  court,  being  of  necessity  obliged  to  refuse  the  remedy  of 
specific  performance,  will  not,  in  general,  retain  the  suit  and  award  com- 
pensatory damages,  because,  as  has  been  said,  the  court  never  acquired  a 


case  for  complete  relief.  In  Moon 
V.  National  Wall-Paper  Co.,  66  N.  Y. 
Supp.  33,  31  Misc.  Kep.  631,  the  com- 
plainant sued  to  abate  a  nuisance 
which  was  voluntarily  abated  after 
the  suit  was  commenced,  and  the 
court  retained  the  ease  for  the  pur- 
pose of  awarding  damages.  In  Lewis 
V.  Town  of  Kingston,  16  E.  I.  15,  27 
Am.  St.  Rep.  724,  11  Atl.  173,  com- 
plainant sought  to  enjoin  a  town 
from  removing  his  building  and 
grading  his  lot.  The  town  com- 
pleted the  work  after  the  filing  of 
the  hill,  and  the  court  retained  juris- 
diction to  give  damages.  In  Case 
V.  Minot,  158  Mass.  577,  22  L.  R.  A. 
536,  33  N.  E.  700,  a  tenant  sued 
his  landlord  to  enjoin  a  nuisance. 
The  right  to  the  injunction  was  lost 
because  of  the  termination  of  the 
lease  before  the  hearing.  It  was 
held  that  the  suit  should  be  retained 
for  the  purpose  of  awarding  dam- 
ages. In  general,  whenever  a  court 
of  equity  has  jurisdiction  to  enter- 
tain a  bill  for  an  injunction  against 


the  commission  or  continuance  of  a 
wrongful  act,  it  may  award  damages 
in  substitution  for  such  injunction, 
where  the  defendant  by  his  acts 
committed  subsequent  to  the  service 
of  process  upon  him  has  rendered  re- 
lief by  injunction  ineffectual.  Hazen 
v.  Lyndonville  Xat.  Bank,  70  Vt. 
543,  556,  67  Am.  St.  Rep.  680,  689, 
41  Atl.  1046,  1051,  citing  the  text; 
Lewis  V.  Town  of  North  Kingston, 
16  E.  I.  15,  26  Am.  St.  Rep.  724.  11 
Atl.  173;  Hayden  v.  Yale,  45  La. 
Ann.  362,  40  Am.  St.  Rep.  232,  12 
South.  633;  Westphal  v.  City  of  New 
York,  177  N.  Y.  140,  69  N.  E.  369. 

See,  also,  Stiefel  v.  New  York  Nov- 
elty Co.,  43  N.  Y.  Supp.  1012.  14 
App.  Div.  371;  Atkinson  v.  Folder, 
78  Miss.  83,  29  South.  767;  Eobinson 
v.  Braiden,  44  W.  Va.  183,  28  S.  E. 
798;  State  v.  Sunapeo  Dam  Co. 
(N.  H.),  55  Atl.  899;  Sadlier  v.  City 
of  New  York,  185  N.  Y.  408,  78 
N.  E.  272  (quoting  the  text  and 
holding  that  the  grant  of  equitable 
relief  is  not  indispensable  where  tlie 


§238 


EQUITY    JUKISPEUDENCE. 


376 


not  admit  of  any  regular  classification:  In  a. suit  to  redeem 
land  sold  under  a  trust  deed  made  by  a  former  owner,  on 

jurisdiction  over  the  cause  for  any  purpose:'  Hatch  v.  Cobb,  4  Johns. 
Ch.  559;  Kempshall  v.  Stone,  5  Johns.  Ch.  194;  Morss  v.  Elmendorf,  11 
Paige,  277;  Smith  v.  Kelley,  56  Me.  64;  McQueen  v.  Chouteau,  20  Mo. 
222,  64  Am.  Dec.  178;  Doan  v.  Mauzey,  33  111.  227;  Gupton  v.  Gupton, 
47  Mo.  37;  Milkman  v.  Ordway,  106  Mass.  232,  253;  Sternberger  v.  Mc- 
Govern,  56  N.  Y.  12,  20;  and  see  also  cases  next  cited.  A  second  rule  is, 
that  if  the  remedy  of  specific  performance  is  possible  at  the  commence- 
ment of  a  suit  by  the  vendee,  and  while  the  action  is  pending  the  vendor 


action  is  properly  brought  and  the 
facts  on  which  equitable  relief  is 
claimed  are  established,  but  where 
through  special  circumstances  money 
damages  only  are  given);  Cincinnati 
&  C.  Traction  Co.  v.  American 
Bridge  Co.,  202  Fed.  184,  120  C.  C.  A. 
398  (bill  to  enforce  an  alleged  lien; 
lien  held  invalid,  but  as  the  ques- 
tion of  its  validity  was  doubtful 
and  undetermined  at  the  time  suit 
was  brought,  the  case  was  retained 
for  the  award  of  damages) ;  Shultz 
V.  Shively,  72  Or.  450,  143  Pac.  1115 
(in  suit  to  foreclose  logging  lien, 
where  it  is  impossible  or  difl&cult  to 
identify  the  logs,  court  may  give 
judgment  for  damages).  The  case  of 
Kosen  v.  Mayer,  224  Mass.  494,  113 
N.  E.  217,  presents  an  interesting 
extension  of  the  principle  laid  down 
in  the  text.  The  purchaser  of  a 
theater  sued  to  rescind  his  purchase 
on  the  ground  that  it  was  induced 
by  his  vendor's  fraudulent  misrepre- 
sentations as  to  the  profits.  Pend- 
ing suit  the  plaintiff  succeeded  in 
putting  the  business  on  a  paying 
basis.  Held,  not  an  abuse  of  dis- 
cretion to  permit  him  to  waive  his 
prayer  for  rescission,  to  retain  the 
suit,  and  to  award  him  damages  for 
the  fraud.  The  case  is  noteworthy 
in  that  the  plaintiff  voluntarily 
abandoned  his  equitable  remedy,  and 


was    not   forced    to   abandon    it    be- 
cause it  had  become  impracticable. 

§  237,  (f)  Damages  in  Lieu  of  Spe- 
cific Performance,  When  not  Granted. 
See,  also,  Hurlbut  v.  Kantzler,  112 
111.  482;  Amick  v.  Ellis,  53  W.  Va. 
421,  44  S.  E.  257  (contract  on  its 
face  is  unenforceable).  If  specific 
performance  is  refused  because  the 
contract  is  within  the  statute  of 
frauds,  damages  will  not  be  allowed 
for  its  breach:  Lydick  v.  Holland, 
83  Mo.  703;  and  see  Lavery  v.  Pur- 
sell,  L.  R.  39  Ch.  Div.  518.  Specific 
performance  of  a  building  contract 
being  refused  because  calling  for  the 
exercise  of  skill  and  judgment,  the 
case,  in  the  absence  of  some  special 
equity,  will  not  be  retained  for  the 
award  of  damages:  Bromberg  v 
Eugenotto  Const.  Co.,  158  Ala.  323 
19  L.  R.  A.  (N.  S.)  1175,  48  South 
60,  citing  this  paragraph  of  the  text 
Where  the  suit  for  specific  perform 
ance  was  dismissed  without  compen 
sation  because  of  plaintiffs  knowl- 
edge of  the  defect  in  vendor's  title, 
plaintiff  may  sue  at  law,  and  the  lat- 
ter suit  is  not  subject  to  be  enjoined 
on  the  claim  that  the  subject-matter 
had  already  been  determined  in  the 
equity  suit:  Logan  v.  Flattau,  73 
N.  J.  Eq.  222,  67  Atl.  1007.  On  the 
subject  of  these  notes,  see,  further, 
Pom.    Eq.    Rem. 


377  JURISDICTION    EMBRACES    WHOLE    MATTER.  §  238 

the  ground  that  the  sale  was  voidable,  brought  by  a  plain- 
tiff holding  by  a  subsequent  conveyance  from  such  fonner 

renders  this  remedy  impracticable  by  conveying  the  subject-matter  to  a 
bona  fide  purchaser  for  value,  the  court  will  not  compel  the  plaintiff  to 
bring  a  second  action  at  lavp,  but  having  acquired  jurisdiction,  will  do 
full  justice  by  decreeing  a  recovery  of  damages :  ^  Morss  v.  Elmendorf, 
11  Paige,  277 ;  Woodcock  v.  Bennet,  1  Cow.  711,  13  Am.  Dec.  56S ;  Milk- 
man V.  Ordway,  106  Mass.  232,  253,  per  Wells,  J.  The  third  rule  is  as 
.  follows :  If  a  specific  performance  was  originally  possible,  but  before 
the  commencement  of  the  suit  the  vendor  makes  it  impossible  by  a  convey- 
ance to  a  third  person;  or  if  the  disability  existed  at  the  very  time  of 
entering  into  the  contract  on  account  of  a  defect  in  the  vendor's  title,  or 
other  similar  reason, — in  either  of  these  cases,  if  the  vendee  brings  his  suit 
in  good  faith,  without  a  knowledge  of  the  existing  disability,  supposing, 
and  having  reason  to  suppose,  himself  entitled  to  the  equitable  remedy  of 
a  specific  performance,  and  the  impossibility  is  first  disclosed  by  the 
defendant's  answer  or  in  the  course  of  the  hearing,  then,  although  the 
court  cannot  grant  a  specific  performance,  it  will  retain  the  cause,  assess 
the  plaintiff's  damages,  and  decree  a  pecuniary  judgment  in  place  of  the 
purely  equitable  relief  originally  demanded.  This  rule  is  settled  by  an 
overwhelming  preponderance  of  American  authorities :  **  Milkman  v.  Ord- 

§237,    (s)    Cited  to  this   effect  in  lar  relief,  yet,  if  the  facts  be  such 

Head  v.  Meloncy,  111  Pa.  St.  99,  2  that   the   plaintiff  might   fairly   and 

Atl.  195.     See,  also,  Conemaugh  Gas  reasonably  have  expected  the  court  to 

Co.  V.  Jackson  Farm  Gas  Co.,  186  Pa.  grant  the  equitable  relief  of  specific 

St.  443,  65  Am.  St.  Rep.  865,  40  Atl.  performance,    there    would    be    such 

1000.     The  rule  applies  where  the  con-  a  show  of  equitable  cognizance  and 

tract  is   performed   after   commence-  doubtful  remedy  and  probable  cause 

ment  of  suit.     Grubb  v.  Sharkey,  90  as  would  save  the  plaintiff  from  the 

Va.  831,  20  S.  E.  784.  penalty    of    a    dismissal    of    the    bill 

§237,    (l»)    Mitchell    v.    Knudston  for  want  of  jurisdiction   because  of 

Land   Co.,  19  N.  D.   736,   124  N.  W.  a  plain,  adequate  and  complete  rem- 

946.      In      McAllister      v.      Harman  edy   at   law."     Waite    v.    O'Neil,    72 

(Va.),  42   S.  E.  920,  a  suit  by  the  Fed.  348;   affirmed,  76  Fed.  408,  34 

vendor,   which   failed,    was    retained  L.   R.  A.   550,   22   C.   C.  A.   248.     In 

for  an   account  of   money  paid   and  Aday  v.  Echols,  18  Ala.  353,  52  Am. 

rents  received.  Dec.    225,    specific   performance    was 

Another  rule  has  been  suggested  refused  because  the  contract  was  not 
in  addition  to  those  stated  in  the  clearly  proved,  but  the  bill  was  re- 
author's  note.  "Even  though  the  tained  for  damages.  And  see  God- 
court  should  deny  a  specific  perform-  dard  v.  American  Queen,  59  N.  Y. 
ance  of  the  contract  in  the  exercise  Supp.  46,  27  Misc.  Rep.  482.  So, 
of  that  judicial  discretion  which  it  where  the  suit  failed  for  lack  of 
has  in  all  cases  asking  that  particu-  proof  of  the  contract,  but  there  was 


§  238  EQUITY    JURISPRUDENCE.  378 

owner,  against  a  defendant  deriving  title  partly  from  the 
trust  sale  and  partly  from  another  source,  the  court  not 
only  dismissed  the  plaintiff's  bill,  but  by  an  affirmative 

way,  106  Mass.  232,  253;  Chartier  v.  Marshall,  56  N.  H.  478;  Attorney- 
General  V.  Deerfield  River  Bridge  €o.,  105  Mass.  1;  Peabody  v.  Tarliell, 

2  Gush.  226 ;  Andrews  v.  Brown,  3  Gush.  130 ;  Pingree  v.  Goffin,  12  Gray, 
288,  305 ;  Woodcock  v.  Bennet,  1  Gow.  711,  13  Am.  Dec.  568 ;  Phillips  v. 
Thompson,  1  Johns.  Gh.  131;  Parkhurst  v.  Van  Gortlandt,  1  Johns.  Gh. 
273;  Morss  v.  Elmendorf,  11  Paige,  277;  Woodward  v.  Harris,  2  Barb. 
439;  Berry  v.  Van  Winkle,  2  N.  J.  Eq.  269;  Gopper  v.  Wells.  1  N.  J.  Eq. 
10;  Rees  v.  Smith,  1  Ohio,  124,  13  Am.  Dec.  599;  Gibbs  v.  Ghampion,  3 
Ohio,  335;  Jones  v.  Shackelford,  2  Bibb,  410;  Fisher  v.  Kay,  2  Bibb,  434; 
Rankin  v.  Maxwell,  2  A.  K.  Marsh.  488,  12  Am.  Dec.  431 ;  Hopkins  v.  Gil- 
man,  22  Wis.  476 ;  Tenney  v.  State  Bank,  20  Wis.  152 ;  Hall  v.  Delaplaine, 

3  Wis.  206,  68  Am.  Dec.  57;  McQueen  v.  Ghouteau,  20  Mo.  222,  61  Am. 
Dec.  178;  O'Meara  v.  North  Am.  Min.  Go.,  2  Nev.  112;  GarroU  v.  Wilson, 
22  Ark.  32 ;  Harrison  v.  Deramus,  33  Ala.  463 ;  Foley  v.  Grow,  37  Md.  51 ; 
Stevenson  v.  Buxton,  37  Barb.  13;  Hamilton  v.  Hamilton,  59  Mo.  232; 
Gupton  V.  Gupton,  47  Mo.  37,  47 ;  Denton  v.  Stewart,  1  Gox,  258 ;  Groena- 
way  V.  Adams,  12  Ves.  393.  In  the  recent  case  of  Millkman  v.  Ordway, 
106  Mass.  232,  253,  the  opinion  of  Wells,  J.,  is  a  vei-y  full,  able,  and  in- 
structive examination  of  the  doctrine  in  all  of  its  aspects.  I  add  a  number 
of  English  decisions,  giving  construction  to  the  statute  known  as  "Lord 
Gairn's  Act"  (21  &  22  Vict.,  chap.  27,  §  1,  A.  D.  1858),  which  permits  a 
court  of  equity  to  award  damages  in  certain  cases,  instead  of  the  particular 
equitable  relief  prayed  for,  when  the  latter  is  found  to  be  impracticable : 
Wicks  V.  Hunt,  Johns.  372,  380;  Lewers  v.  Earl  of  Shaftesbury,  L.  R.  2 
Eq.  270;  Scott  v.  Ra^Tnent,  L.  R.  7  Eq.  112;  Ferguson  v.  Wilson,  L.  R.  2 
Gh.  77;  Durell  v.  Pritchard,  L.  R.  1  Gh.  244;  Rogers  v.  Ghallis,  27  Beav. 

proof  of  a  parol  license  for  the  con-  formance  and  the  relief  is  granted, 
struction  of  a  building,  the  case  was  the  bill  will  be  retained  for  corn- 
retained  to  award  compensation  for  plete  relief.  Thus,  where  the  bill 
preventing  the  use  of  the  building:  seeks  specific  performance  of  a  con- 
Shipley  v.  Fink,  102  Md.  219,  2  tract  to  deliver  certain  instruments, 
L.  R.  A.  (N.  S.)  1002,  62  Atl.  360.  the  court  may  decree  specific  per- 
In  Combs  v.  Seott,  76  Wis.  662.  45  formance  and  then  award  a  money 
N.  W.  532,  the  statute  of  limitations  recovery  on  the  instruments.  Clarke 
having  run  upon  the  contract  pend-  v.  White,  37  U.  S.  (12  Pet.)  178; 
ing  suits  for  specific  performance.  Union  Cent.  Life  Ins.  Co.  v.  Phillips, 
the  cause  was  retained  for  the  pur-  102  Fed.  19,  41  C.  C.  A.  263.  See, 
pose  of  granting  compensation.  also,   Grifiin   v.   Griffin,   163   III.   216, 

Of    course    when    the    court    takes  45  N.  E.  241. 
jurisdiction  of  a  bill  for  specific  per- 


379  JUEISDICTION    EMBRACES    WHOLE    MATTER.  §  238 

decree  declared  and  established  the  defendant's  title. ^  In 
a  suit  brought  by  the  holder  of  a  vendor's  lien  to  enjoin  the 
sale  of  land  covered  by  the  lien,  about  to  be  made  by  a 
judgment  creditor  of  the  owner,  the  court  went  on  and 
decreed  a  sale  of  the  land,  and  the  application  of  its  pro- 
ceeds in  satisfaction,  first,  of  the  plaintiff's  vendor's  lien, 
and  then  of  the  judgment  creditor's  demand. 2  A  suit  being 
brought  to  reform  a  policy  of  insurance  after  a  loss  had 
occurred,  the  court  retained  the  cause  and  gave  the  plain- 
tiff final  and  complete  relief  by  ordering  a  payment  of  the 
amount  due  on  the  policy  as  reformed,  although  the  remedy 
would  ordinarily  and  naturally  have  belonged  to  a  court 
of  law.3  a- 

175;  Chinnock  v.  Sainsbury,  30  L.  J.,  N.  S.,  409;  Collins  v.  Stubly,  7 
Week.  Rep.  710 ;  Corporation  of  Hytlie  v.  East,  L.  R.  1  Eq.  620 ;  Middle- 
ton  V.  Greenwood,  2  De  Gex,  J.  &  S.  142;  Soames  v.  Edge,  John.  669; 
Lillie  V.  Legh,  3  De  Gex  &  J.  204;  De  Brassac  v.  Martin,  11  "Week.  Rep. 
1020;  Cory  v.  Thames,  etc.,  11  Week.  Rep.  589;  Howe  v.  Hunt,  31  Beav. 
420;  Norris  v.  Jackson,  1  Johns.  &  H.  319,  3  Giff.  396;  Samuda  v.  Law- 
ford,  8  Jur.,  N.  S.,  739. 

§  238,  1  Farrar  v.  Payne,  73  111.  82,  91. 

§  238,  2  Parker  v.  Kelly,  10  Smedes  &  M.  184.  A  vendor  had  given  a 
bond  to  convey  land,  and  had  taken  the  vendee's  notes  for  the  price,  one 
of  which  notes  he  assigned  to  the  plaintiff,  and  aftenvards  gave  a  deed  of 
the  land  to  the  vendee.  Subsequently  to  this  conveyance,  A  recovered  a 
judgment  against  the  vendee,  and  was  about  to  sell  the  land  in  question 
upon  an  execution.  The  plaintiff  thereupon  brought  this  suit  to  enjoin 
such  execution  sale,  on  the  ground  that  the  vendor's  lien  securing  his  note 
given  by  the  vendee  was  prior  to  the  lien  of  A's  judgment.  The  court 
held  that,  having  jurisdiction  to  enjoin  said  sale,  it  would  go  on  and  settle 
the  rights  of  all  the  parties  by  decreeing  a  sale  of  the  land,  and  a  payment 
of  the  plaintiff's  note,  and  then  of  A's  judgment  out  of  the  proceeds. 

§  238,  3  Franklin  Ins.  Co.  v.  McCrea,  4  G.  Greene,  229 ;  Com.  v.  Niagara 
Ins.  Co.,  60  N.  Y.  619,  3  Thomp.  &  C.  33 ;  Bidwell  v.  Astor  Ins.  Co.,  16 
N.  Y.  263.  It  should  be  remarked,  however,  that  all  these  decisions  were 
made  under  the  reformed  procedure,  by  which  legal  and  equitable  reme- 
dies may  be  combined  in  the  same  "civil  action." 

§238,  (a)  In  Union  Cent.  Life  Ins.  compel  the  delivery  of  a  life  insur- 
Co.  v.  Phillips,  102  Fed.  19,  41  anee  policy  after  the  death  of  the 
C.  C.   A.  263,  a  bill  was  brought  to       insured.     The  court  retained  the  bill 


§239 


EQUITY    JUEISPKUDENCE. 


380 


§  239.  A  suit  was  brought  by  creditors  of  a  firm  against 
the  administrator  of  a  deceased  partner,  to  restrain  him 
from  using  and  disposing  of  certain  assets  which  were 
really  firm  assets,  under  the  claim  that  they  belonged  to 
the  decedent's  individual  estate.  The  court,  expressly  in- 
voking the  general  principle,  held  that,  having  acquired 
jurisdiction  over  a  part  of  the  matter,  it  would  go  on  and 
decree  a  full  and  final  winding  up  and  settlement  of  all  the 
partnership  matters. ^  ^  In  a  certain  judicial  proceeding  in 
which  a  preliminary  injunction  had  been  issued,  two  injunc- 
tion bonds  had  been  given  by  the  same  party  as  principal, 
but  with  different  sureties.     The  injunction  having  been 

§  239,  1  Martin  v.  Tidwell,  36  Ga.  332,  345. 


to  give  final  relief  on  the  policy. 
In  North  British  &  Merc.  Ins.  Co.  v. 
Lathrop,  63  Fed.  508,  70  Fed.  429, 
433,  25  U.  S.  App.  443,  an  injunction 
was  issued  against  an  action  at  law 
on  an  insurance  policy.  The  defend- 
ant filed  a  cross-bill  to  enforce 
payment.  The  injunction  was  con- 
tinued until  it  was  too  late  to  sue 
at  law.  Accordingly  it  was  held 
that  the  court  would  grant  the  legal 
relief  prayed  for  by  the  cross-bill, 
"If  its  object  is  to  obtain  complete 
relief  concerning  the  matters  set  out 
in  the  original  bill,  even  though  it 
be  affirmative  in  character,  it  need 
not,  as  against  the  plaintiff  in  such 
original  bill,  show  any  ground  of 
equity  to  support  the  jurisdiction  of 
the  court."  In  Continental  Ins.  Co. 
V.  Garrett,  125  Fed.  589,  it  was  held 
that  the  court  having  obtained  juris- 
diction to  set  aside  an  award  of 
insurance  arbitrators  may  properly 
retain  the  case  to  determine  the 
amount  of  damages.  Contra,  in 
Stout  V.  Phoenix  Assur.  Co.  (N.  J. 
Eq.),  56  Atl.  691,  a  bill  to  set  aside 
an  appraisement  of  property  de- 
stroyed   by   fire,   the   court   refused, 


under  the  view  of  the  jurisdiction 
entertained  in  New  Jersey,  to  retain 
the  case  in  order  to  determine  the 
extent  of  liability. 

Reformation  and  Full  Relief. — 
When  equity  takes  jurisdiction  to 
reform  an  instrument,  it  may  go  on 
and  decree  full  relief  thereon. 
Haynes  v.  Whitsett,  18  Or.  454,  22 
Pae.  1072;  Imperial  Shale  Brick  Co. 
V.  Jewett,  169  N.  Y.  143,  62  N.  E. 
167;  Kelly  v.  Galbraith,  186  111.  593, 
58  N.  E.  431;  Keith  v.  Henkleman. 
173  111.  137,  50  N.  E.  692;  also,  Cas- 
tle v.  Gleason,  35  S.  D.  98,  150  N.  W. 
895,  citing  this  paragraph  of  the 
text.  And  see  Harvey  v.  United 
States,  105  U.  S.  671,  where  the 
Court  of  Claims  gave  such  relief 
under  authority  of  a  special  statute. 

§239.  (a)  Likewise,  in  Kayser  v. 
Mongham,  8  Colo.  232,  6  Pac.  803, 
suit  was  brought  by  one  claiming  to 
be  an  equitable  owner  of  realty  be- 
cause of  partnership  transactions  for 
the  purpose  of  compelling  a  convey- 
ance of  the  legal  title.  This  relief 
was  denied,  but  the  court  retained 
the  case  for  an  account  and  a  set- 
tlement of  the  partnership  affairs. 


381  JURISDICTION    EMBRACES    WHOLE    MATTER.  §  240 

finally  dissolved,  the  several  persons  enjoined  were  sep- 
arately injured  by  the  injunction,  and  therefore  claimed  dif- 
ferent amounts  of  damages.  These  several  persons  joined 
as  coplaintiffs  in  an  equity  suit  against  the  obligors,  princi- 
pal and  sureties,  on  the  two  bonds,  to  recover  the  amounts 
of  damages  to  which  they  were  respectively  entitled.  The 
court  retained  the  cause,  and  decreed  complete  relief,  deter- 
mining the  sums  to  be  paid  by  the  defendants,  and  also  the 
share  of  each  plaintiff.  Having  jurisdiction  to  settle  the 
rights  of  the  several  obligees,  the  plaintiffs,  to  the  pro- 
ceeds, the  court  could  in  one  equity  suit  finally  settle  the 
rights  and  liabilities  of  all  the  parties,  and  thus  save  time, 
expense,  and  unnecessary  litigation.^  In  a  suit  brought  in 
the  United  States  circuit  court  for  the  infringement  of  a 
patent  right,  which,  under  the  constitution  and  statutes  of 
Congress,  belongs  to  the  exclusive  jurisdiction  of  that  tri- 
bunal, the  court  retained  the  cause,  and  gave  to  the  plain- 
tiff full  relief  by  injunction,  and  an  account  of  profits  on 
a  contract  which  had  been  made  between  the  parties  for 
the  use  of  the  patent  by  the  defendant,  which  contract  had 
been  violated  by  the  defendant.  It  should  be  particularly 
noticed  that  the  cause  of  action  arising  out  of  the  breach  of 
this  contract  alone  did  not  of  itself  come  within  the  equity 
jurisdiction  of  the  United  States  courts.^ 

§  240.a  In  a  suit  by  a  vendee  to  set  aside  a  contract  for 
the  sale  of  land,  on  the  ground  of  the  vendor's  fraud,  or 
because  he  is  unable  to  give  a  good  title,  the  court  will 
award  a  repayment  of  the  purchase-money  already  paid, 
or  damages,  or  make  any  other  additional  decree  which 

§  239,  2  Oelrichs  v.  Spain,  15  Wall.  211,  228,  per  Swayne,  J. 

§  239,  3  Brooks  v.  Stolley,  3  McLean,  523,  529,  per  McLean,  J. :  "Hav- 
ing jurisdiction  [i.  e.,  by  the  infringement],  the  court  may  decide  other 
matters  between  the  parties,  which  of  themselves  might  not  afford  ground 
for  the  original  exercise  of  jurisdiction." 

§240,  (a)  This  paragraph  is  cited,  140  N.  C.  163,  111  Am.  St.  Rep.  827, 
generally,   in    Sprinkle   v.    Wellborn,       3  L.  R.  A.   (N.  S.)   174,  52  S.  E.  666. 


§  241  EQUITY    JURISPRUDENCE.  382 

the  justice  of  the  case  may  require.^  In  a  similar  manner, 
a  suit  having  been  brought  by  the  heirs  of  the  next  of 
kin  or  a  decedent  against  his  administrator,  to  set  aside  a 
decree  of  a  probate  court  confirming  his  accounts  and 
ordering  a  sale  of  real  estate,  which  the  administrator  had 
obtained  by  fraud,  the  court  held  that,  having  obtained 
jurisdiction  to  set  aside  this  fraudulent  decree,  it  would 
grant  complete  and  final  relief,  by  directing  an  account  of 
all  his  proceedings  by  the  administrator,  and  a  settlement 
and  distribution  of  the  estate,  although  the  general  juris- 
diction over  administrations  had  been  conferred  by  statute 
upon  the  probate  court.^ 

§  241.  Money  arising  from  a  sheriff's  sale  made  in  the 
course  of  a  pending  suit  was  paid  into  court.  This  fund, 
after  an  examination  before  a  master,  was  found  by  him 
to  be  applicable  upon  a  certain  judgment  in  favor  of  one 
S.  One  L.  alleged  that  such  judgment  had  in  fact  been 
given  to  secure  a  debt  due  to  himself,  and  he  therefore 
claimed  the  money.  The  court  held  that  it  had  incidental 
jurisdiction  to  decide  these  conflicting  claims  arising  in 
the  course  of  the  principal  suit,  and  to  distribute  the  fund 
among  the  rightful  owners. ^  The  defendant,  by  one 
wrongful  act  and  in  one  mass,  detained  a  quantity  of  chat- 

§  240,  1  Hepburn  v.  Dunlop,  1  Wheat.  179,  197,  per  Washington,  J. : 
"Generally  speaking,  a  court  of  law  is  competent  to  afford  an  adequate 
relief  to  either  party  for  a  breach  of  the  contract  by  the  other,  from  what- 
ever cause  it  may  have  proceeded ;  and  whenever  this  is  the  case,  a  resort 
to  a  court  of  equity  is  improper.  But  if  the  contract  ought  not  in  con- 
science to  bind  one  of  the  parties,  as  if  he  had  acted  under  a  mistake,  or 
was  imposed  upon  by  the  other  party,  or  the  like,  a  court  of  equity  will 
interfere  and  afford  a  relief  which  a  court  of  law  cannot,  by  setting  aside 
the  contract;  and  having  thus  obtained  jurisdiction  of  the  principal  ques- 
tion, that  court  will  proceed  to  make  such  other  decree  as  the  justice  of  the 
case  may  require." 

§  240,  2  Keeton  v.  Spradling,  13  Mo.  321,  323. 

§  241,  1  Souder's  Appeal,  57  Pa.  St.  49S,  502.  "Where  a  court  of 
equity  once  obtains  rightful  jurisdiction  of  a  subject,  it  will  comprehend 
within  its  grasp  and  decide  all  incidental  matters  necessaiy  to  enable  it 


383  JUBISDICTION    EMBRACES    WHOLE    MATTER.  §  241 

tels  belonging  to  the  plaintiff.  A  part  of  these  were  arti- 
cles of  a  special  nature  and  personal  value,  for  which  dam- 
ages could  not  adequately  be  ascertained,  and  in  respect  of 
which  the  equity  jurisdiction  to  compel  their  restoration 
was  clear.  The  remaining  portion  were  ordinary  chattels, 
of  a  kind  readily  purchasable  in  the  market,  and  for  which 
damages  could  be  assessed  without  difficulty.  The  plain- 
tiff brought  a  suit  in  equity  to  compel  the  restoration  of 
the  entire  mass  of  chattels.  The  court  held  that  since  its 
jurisdiction  attached  over  the  one  class  of  articles,  it  would 
decide  the  whole  controversy  in  the  one  suit,  and  decree 
a  return  of  the  entire  amount,  the  two  kinds  being  con- 
nected by  the  single  wrongful  act  of  the  defendant. ^  Cer- 
tain lands  had  been  assigned  to  a  widow,  by  virtue  of  her 
dower  right.  Part  of  these  lands  were  occupied  by  ten- 
ants under  a  lease  made  by  her  husband  during  his  life- 
time, and  a  part  were  occupied  by  tenants  under  leases 
made  by  the  administrator  after  the  husband's  death  and 
before  the  assignment  to  the  widow.  She  brought  a  suit 
in  equity  against  the  administrator  and  these  tenants,  to 
recover  the  rents  of  the  lands  assigned  to  her  which  had 
accrued  after  her  husband's  death  and  before  the  assign- 
ment, namely,  the  rents  under  the  lease  made  by  her  hus- 
band, and  the  rents  arising  under  the  leases  made  by  the 
administrator.  The  suit  was  held  to  be  properly  brought; 
and  the  jurisdiction  having  attached,  the  court  would  do 
full  justice  by  settling  an  account  of  the  rents  due  or  paid 
by  the  tenants  of  the  administrator  up  to  the  time  when 
the  administrator's  possession  was  terminated  by  the  as- 
signment and  delivery  of  the  land  to  the  widow,  althougli 
such  rents  might  be  recovered  by  her  in  an  action  at  law.^ 

to  make  a  full  and  final  determination  of  the  whole  controversy,  and  thus 
to  terminate  litigation,  while  it  facilitates  the  remedy:  McGowin  v.  Rem- 
ington, 12  Pa.  St.  56,  51  Am.  Dec.  504." 

§  241,  2  McGowin  v.  Remington,  12  Pa.  St.  56,  63,  51  Am.  Dec.  584. 
The  whole  opinion  in  this  case  is  able  and  instructive. 

§  241,  3  Boyd  v.  Hunter,  44  Ala.  705,  719 ;  citing  Stow  v.  Bozeman's 
Ex'rs,  29  Ala.  397. 


§  241  EQUITY    JUEISPEUDENCE.  384 

In  a  suit  to  compel  the  delivery  of  certain  written  instru- 
ments under  an  agreement,  the  court  decreed  that  defend- 
ant should  repay  moneys  expended  by  the  plaintiff  in 
connection  with  their  contract.*  One  or  two  other  cases 
depending  upon  j)eculiar  circumstances  will  be  found  in 
the  foot-note.5  » 

§  241,  4  Clarke  v.  White,  12  Pet,  178,  187,  188. 

§  241,  5  Phelan  v.  Boylan,  25  Wis.  679 :  The  owners  in  fee  in  reversion 
of  certain  lands  after  a  life  tenant  by  the  curtesy  in  possession  brought 
a  suit  to  compel  him  to  hold  a  tax  title  of  the  premises  which  he  had 
obtained,  for  the  benefit  of  their  reversionary  estate  as  well  as  for  his 
own  life  interest.  The  court  held  that,  having  acquired  jurisdiction  for 
this  purpose,  it  would  grant  further  relief  necessary  to  maintain  the  rights 
of  the  plaintiffs;  viz.,  it  compelled  the  defendant  to  refund  moneys  which 
the  plaintiffs  had  been  compelled  to  pay  for  the  taxes  assessed  on  the 
premises  through  several  years,  in  order  to  save  them  from  tax  sale,  he 
having  intentionally  neglected  to  pay  such  taxes;  and  it  might  compel 
him  to  give  security  to  pay  the  taxes  which  might  be  assessed  in  future. 
State  V.  McKay,  43  Mo.  594,  698 :  The  attorney-general  brought  this  suit 
against  certain  executive  officers  of  the  state,  and  against  the  vendees, 
charging  fraud  in  the  sale  of  a  railroad  which  had  belonged  to  the  state, 
and  praying  for  a  rescission  of  the  sale,  an  accounting,  and  general  relief. 
While  the  suit  was  pending,  the  legislature  passed  a  statute  confirming  the 
sale,  and  the  title  to  the  road  of  the  vendees.  The  defendants  claimed 
that  the  jurisdiction  of  the  court  was  thereby  ended.  The  court,  however, 
asserted  its  continued  jurisdiction,  invoking  the  general  principle  under 
discussion,  and  holding  that  it  might  sometimes  award  damages  when  it 
had  obtained  jurisdiction  on  other  grounds.  "And  so,  too,  it  will  afford 
such  relief  as  the  altered  situation  of  the  parties  or  of  the  subject-matter 
requires,  if  sufficient  remains  to  warrant  equitable  interference." 

§241,    (a)    This   paragraph   of  the  Civ.   App.   Ill,  49   S.   W.   160,   or  it 

text  is  cited  in  Electric  Boat  Co.  v.  may  be  some  purely  equitable  relief. 

Lake    Torpedo    Boat    Co.,    215    Fed.  In  Shipman  v.  Furniss,  69  Ala.  555, 

377.  44  Am.  Rep.  528,  a  bill  was  brought 

Miscellaneous  Instances. — Where  a  to  cancel  a  deed  obtained  by  fraud 

proper    case    is    made    out    for    can-  as  a  cloud  on  title.     The  court  said: 

cellation  of  an  instrument,  full  relief  "It  is  true  that  the  jurisdiction  of  a 

may    be     given.     United    States    v.  court   of   equity   cannot   be   invoked 

Union  Pac.  R.  Co.,  160  U.  S.  1,  16  when   the   sole  ground   of   equitable 

Sup.  Ct.  190.     This  relief  may  con-  interference  is  a  removal  of  a  cloud 

sist  of  money  damages,  as  in  Pioneer  from  the  title,  unless  the  complain- 

Sav.   &   Loan   Co.   v.   Peck,   20   Tex.  ant   is,    at    the    time,   in   possession. 


385 


JURISDICTION    EMBRACES    WHOLE    MATTER. 


242 


§  242.  Effect  of  the  Reformed  Procedure  on  the  Doc- 
trine.— It  was  a  fundamental  conception  of  the  equity 
jurisprudence,  from  the  earliest  periods  as  soon  as  its  juris- 


But  the  rule  is  different  when  other 
distinct  grounds  of  jurisdiction  are 
averred." 

Similarly,  when  equity  takes  juris- 
diction to  quiet  title  it  may  retain 
the  case  for  such  further  relief  as 
may  be  proper.  Slegcl  v.  Herbine, 
148  Pa.  St.  236,  15  L.  R.  A.  547,  23 
Atl.  996;  Elk  Fork  Oil  &  Gas  Co.  v. 
Jennings,  84  Fed.  839;  Bryan  v.  Mc- 
Cann  (W.  Va.),  47  S.  E.  143  (suit  to 
remove  cloud  on  title).  See,  fur- 
ther, Brown  v.  Bonds,  125  Ga.  833,  54 
S.  E.  933  (suit  to  cancel  deed  as 
cloud  on  title);  Aster  v.  Uhl,  122 
Ky.  114,  87  S.  W.  307,  93  S.  W.  29 
(court  having  jurisdiction  to  remove 
cloud  from  title,  may  quiet  title 
against  adverse  claims,  under  the 
statute);  Bell  v.  Dingwell,  91  Neb. 
699,  136  N.  W.  1128  (plaintiff  out  of 
possession  may  also  have  accounting 
as  to  rents  and  profits,  and  parti- 
tion); Wehrheim  v.  Smith,  226  111. 
346,  80  N.  E.  908  (in  a  suit  to  quiet 
title  against  a  judgment  lien,  equity 
may  revive  the  judgment  on  its  be- 
coming dormant  during  suit,  lien- 
holder  not  being  compelled  to  resort 
to  law  for  the  purpose).  In  Hard- 
ing V.  Fuller,  141  111.  308,  30  N.  E. 
1053,  a  bill  to  quiet  title  was  re- 
tained to  put  the  complainant  in 
possession.  Under  the  Burnt  Kocord 
Act  in  Illinois  it  has  been  held  that 
such  a  bill  may  be  retained  although 
the  right  to  possession  is  involved. 
Gormley  v.  Clark,  134  U.  S.  338,  10 
Sup.  Ct.  554.  In  Salem  Imp.  Co.  v. 
McCourt,  26  Or.  93,  41  Pac.  1105,  it 
was  held  that  a  bill  to  quiet  title 
may  be  retained  for  the  purpose  of 
determining  a  boundary, 
1—25 


The  principle  applies  as  well  to 
bills  to  set  aside  fraudulent  convey- 
ances, and  full  relief  will  be  granted. 
Chrislip  v.  Teter,  43  W.  Va.  356,  27 
S.  E.  288;  Brock  v.  Berry,  132  Ala. 
95,  90  Am.  St,  Rep.  896,  31  South. 
517;  Adee  v.  Hallett,  3  App.  Div. 
308,  38  N.  Y.  Supp.  273;  Carpenter 
v.  Osborn,  102  N.  Y.  552,  7  N,  E.  823. 

In  Chase  v.  Boughton,  93  Mich. 
285,  54  N.  W.  44,  a  bill  to  set  aside 
a  forfeiture  of  a  contract  was  re- 
tained to  award  damages.  In  Vir- 
den  V.  Board  of  Pilot  Commission- 
ers, 8  Del.  Ch.  1,  67  Atl.  975,  as  inci- 
dent to  injunction  against  a  for- 
feiture the  court  gave  relief  against 
a  pecuniary  fine. 

The  principle  was  applied  to  a 
proceeding  by  a  holder  of  warrants 
to  have  the  funding  pf  the  warrants 
set  aside;  the  plaintiff  was  not  re- 
mitted to  a  separate  action  at  law 
on  the  warrants:  De  Roberts  v.  Town 
of  Cross,  23  Okl.  888,  101  Pac.  1114. 

In  actions  for  partition  it  is  some- 
times held  that  the  court  may  deter- 
mine the  legal  title.  Cecil  v.  Clark, 
44  W.  Va.  659,  30  S.  E.  216;  Wilson 
v.  Dresser,  152  111.  387,  38  N.  E.  888. 
But  see  Kilgore  v.  Kilgore,  103  Ala. 
614,  15  South.  897.  In  Holloway  v. 
Holloway,  97  Mo.  628,  10  Am.  St. 
Rep.  339,  11  S.  W.  233;  Herrick  v. 
Lynch,  150  111.  283,  37  N.  E.  221, 
bills  for  partition  were  retained  for 
purposes  of  an  account. 

Bills  to  enforce  or  foreclose  liens 
are  frequently  retained  for  money 
judgments.  Evans  v.  Kelly,  49  W. 
Va.  181,  38  S.  E.  497;  Fidelity  Tr. 
&  G.  Co.  v.  Fowler  Water  Co.,  113 
Fed.   560;   Albrecht  v.   C.  C.  Foster 


§242 


EQUITY    JUKISPRUDENCE. 


386 


difition  became  established  and  its  peculiar  methods  be- 
came developed,  that  the  court  of  chancery,  in  any  cause 
coming  before  it  for  decision,  if  the  circumstances  of  the 
case  would  permit,  and  all  the  parties  in  interest  were  or 
could  be  brought  before  it,  would  strive  to  determine  the 
entire  controversy,  to  award  full  and  final  relief,  and  thus 
to  do  complete  justice  to  all  the  litigants,  whatever  might 
be  the  amount  or  nature  of  their  interest  in  the  single  pro- 
ceeding, and  thus  to  bring  all  possible  litigation  over  the 
subject-matter  within  the  compass  of  one  judicial  deter- 


Lumber  Co.,  126  Ind.  318,  26  N.  E. 
157;  Bison  v.  Moon,  91  Va.  384,  22 
S.  E'.  165.  In  Hathaway  v.  Hagan, 
64  Vt.  135,  24  Atl.  131,  a  bill  was 
brought  to  foreclose  a  mortgage. 
The  court  found  that  the  notes  had 
been  more  than  paid,  and  retained 
jurisdiction  to  relieve  the  defendant 
on  a  cross-bill. 

Likewise,  the  jurisdiction  will  be 
retained  when  a  bill  is  brought  to 
redeem.  Schmid  t.  Lisiewski,  53 
N.  J.  Eq.  670,  31  Atl.  603;  Vick  v. 
Beverly,  112  Ala.  458,  21  South.  325; 
Middle  States  L.,  B,  &  C.  Co.  v, 
Hagerstown,  M.  &  U.  Co.,  82  Md. 
506,  33  Atl.  886.  A  bill  to  discharge 
a  mortgage  was  retained  to  award 
the  surplus  due  from  the  mortgagee 
for  rents.  Whetstone  v.  McQueen, 
137  Ala.  301,  34  South.  229. 

In  Walters  v.  Farmers'  Bank,  76 
Va.  12,  it  is  held  that  when  a  suit  is 
brought  on  a  note  of  a  married 
woman  to  charge  her  separate  estate, 
and  her  indorser  is  joined  as  defend- 
ant, if  for  any  cause  developed  in 
the  suit  recourse  against  her  sepa- 
rate estate  fails,  the  plaintiff  may 
have  relief  against  the  indorser.  In 
Beecher  v.  Lewis,  84  Va.  630,  it  was 
said  that  the  doctrine  was  expressly 
applicable  where  there  are  accov/nts 
to  be  discovered  and  examined;  and 


that  where  jurisdiction  has  once 
been  acquired  to  settle  accounts  aris- 
ing under  a  trust  deed,  the  court 
may  render  a  personal  decree  for  the 
balance  due  from  the  debtor  beyond 
the  sum  realized  by  the  sale  under 
the  trust  deed. 

In  the  following  miscellaneous 
cases  the  principle  is  applied:  Bank 
of  Stockham  v.  Alter,  61  Neb.  359, 
85  N.  W,  300;  Kirschbaum  v.  Coon 
(Va.),  25  S.  E.  658;  Hotchkiss  v. 
Fitzgerald  P.  P.  P.  Co.,  41  W.  Va. 
357,  23  S.  E.  576;  Hanly  v.  Watter- 
son,  39  W.  Va.  214,  19  S.  E.  536; 
Schwab  V.  Frisco  M.  &  M.  Co.,  21 
Utah,  258,  60  Pac.  940;  Swingle  v. 
Brown  (Tenn.  Ch.  App.),  48  S.  W. 
347;  Evins  v.  Cawthon,  132  Ala.  184, 
31  South.  441;  Vicksburg  &  Y.  C. 
Tel.  Co.  v.  Citizens'  Tel.  Co.,  79  Miss. 
341,  89  Am.  St.  Eep.  056,  30  South. 
725;  Whipple  v.  Farrar,  3  Mich.  436, 
64  Am.  Dec.  99;  Ecyburn  v.  Mitchell, 
106  Mo.  365,  27  Am.  St.  Rep.  350, 
16  S.  W.  592;  Vaught  v.  Meador,  99 
Va.  569,  86  Am.  St.  Rep.  908,  39  S.  E. 
225;  Gleason  &  Bailey  Mfg.  Co.  v. 
Hoffman,  168  111.  25,  48  N.  E.  143; 
Pinkum  v.  City  of  E'au  Claire,  81 
Wis.  301,  51  N.  W.  550;  Balsley  v. 
Balsley,  116  N.  C.  472,  21  S.  E.  954; 
Williamson  v.  Moore,  101  Fed.  322; 
Olson  v.  Lamb,  61  Neb.  484,  85  N.  W. 


387 


JURISDICTION    EMBRACES    WHOLE    MATTER. 


§242 


mination.a  "We  have  seen,  in  the  foregoing  paragraphs, 
that  this  conception  of  the  equity  jurisprudence  has  been 
steadily  applied  throughout  the  whole  history  of  the  court 
to  a  great  variety  of  circumstances,  litigations,  and  reliefs. 
By  virtue  of  its  operation,  and  in  order  to  promote  justice, 
the  court,  having  obtained  jurisdiction  of  a  controversy  for 
some  purpose  clearly  equitable,  has  often  extended  its  judi- 


397;  Cunningham  v.  City  of  Cleve- 
land, 98  Fed.  657,  39  C.  C.  A.  211; 
Bath  Paper  Co.  v.  Langley,  23  S.  C. 
129;  Watson  v.  Watson  (Tenn.  Ch. 
App.),  57  S.  W.  385;  Nichol  v.  Stew- 
art, 36  Ark.  612;  Central  Trust  Co. 
V.  Wabash,  St.  L.  &  P.  Ry.  Co.,  29 
Fed.  546;  Little  Eock  etc.  R.  R.  Co. 
V.  Perry,  37  Ark.  164;  Buchanan  r. 
Griggs,  20  Neb.  165,  29  N.  W.  297; 
Winton's  Appeal,  97  Pa.  St.  385; 
Conger  v.  Cotton,  37  Ark.  286; 
Marine  etc.  Mfg.  Co.  v.  Bradley, 
105  U.  S.  182;  Swift  v.  Dewey,  20 
Neb.  107,  29  N.  W.  254;  Ober  v.  Gal- 
lagher, 93  U.  S.  199;  Howards  v. 
Selden,  4  Hughes,  310,  5  Fed.  465, 
473;  City  of  Centerville  v.  Fidelity 
Trust  &  Guaranty  Co.,  118  Fed.  332, 
55  C.  C.  A.  348;  Barrett  v.  Twin  City 
Power  Co.,  118  Fed.  861;  Twin  City 
Power  Co.  v.  Barrett,  126  Fed.  302; 
State  V.  Fredlock,  52  W.  Va.  232,  94 
Am,  St.  Rep.  932,  43  S.  E.  153.  See, 
al?o,  Farmers'  Pawnee  Canal  Co.  v. 
Henderson,  46  Colo.  37,  102  Pac.  1083 
(where  court  has  jurisdiction  to  de- 
clare assessment  of  stock  invalid,  it 
may  retain  jurisdiction  to  direct 
transfer  on  books  of  corporation) ; 
Cook  V.  Warner,  41  Okl.  781,  140 
Pac.  424;  Templeton  v.  Bockler,  73 
Or.  494,  144  Pac.  405;  Hoi  den  v. 
Bernstein  Mfg.  Co.,  232  Pa.  366,  81 
Atl.  428  (in  a  suit  for  account  of 
royalties  for  the  use  of  patented 
articles,  it  is  proper  to  settle  the 
amount  of  salary  and  commissions 
due  to  plaintiff). 


In  Norton  v.  Sinkhorn,  61  N.  J. 
Eq.  508,  48  Atl.  822;  modified,  63 
N.  J.  Eq.  313,  50  Atl.  506,  it  was 
held  that  a  court  of  equity  will  not 
give  a  decree  for  unliquidated  dam- 
ages. The  court  ordered  the  case  re- 
tained until  the  damages  could  be 
assessed   at   law. 

"When  a  complainant  files  a  bill 
that  properly  falls  under  one  or  an- 
other of  the  heads  of  ordinary  chan- 
cery jurisdiction,  the  right  of  the  de- 
fendant to  maintain  a  cross-bill  that 
is  germane  to  the  original  bill  is  not 
dependent  upon  the  validity  of  the 
claim  made  in  the  original  bill." 
Biegler  v.  Merchants'  Loan  &  Tr.  Co., 
164  HI.  197,  45  N.  E.  512.  In  this 
case  the  plaintiff  sought  to  enjoin 
the  collection  of  notes.  The  defend- 
ant set  up  that  he  was  a  fair  pur- 
chaser, and  asked  judgment  for  the 
amount  due.  This  relief  was  given. 
See,  also,  Pratt  v.  Boody,  55  N.  J. 
Eq.  175,  35  Atl.  1113. 

In  some  jurisdictions  it  is  held 
that  a  bill  will  not  be  retained  for 
complete  relief  unless  the  legal  re- 
lief is  asked  for  in  the  bill.  Hawes 
V.  Dobbs,  137  N,  Y.  465,  33  N.  E. 
560;  Dinwiddle  v.  Bell,  95  HI.  360. 
See,  also,  Waldron  v.  Harvey 
(W.  Va.),  46  S.  E.  603. 

§  242,  (a)  The  text  is  quoted  in 
Paine  v.  Germantown  Trust  Co.,  136 
Fed.  527,  69  C.  C.  A.  303;  Asher  v. 
Uhl,  122  Ky.  114,  87  S.  W.  307,  93 
S.  W.  29. 


§  242  EQUITY   JURISPBUDENCE,  388 

cial  cognizance  over  rights,  interests,  and  causes  of  action 
which  were  purely  legal  in  their  nature,  and  has  awarded 
remedies  which  could  have  been  adequately  bestowed  by  a 
court  of  law.^  This  same  grand  principle  is  one  of  the 
fundamental  and  essential  thoughts  embodied  in  the  "re- 
formed system  of  procedure, ' '  which  first  appeared  in  1848, 
in  the  New  York  Code  of  Civil  Procedure,  has  since  ex- 
tended through  so  many  states  and  territories  of  this  coun- 
try and  colonies  of  Great  Britain,  and  was  substantially 
adopted  for  England  in  the  ''Supreme  Court  of  Judica- 
ture Acts."  That  system  of  procedure,  by  combining  the 
actions  at  law  and  suits  in  equity  into  one  "civil  action," 
by  permitting  the  union  of  legal  and  equitable  primary 
rights,  and  interests,  and  causes  of  action  in  the  one  judi- 
cial proceeding,  and  the  granting  of  legal  and  equitable 
remedies  in  the  one  judgment,  and  by  the  substitution  of 
many  equity  rules  concerning  the  prosecution  of  suits  in 
place  of  the  arbitrary  rules  of  the  law  regulating  the  con- 
duct of  actions,  has  greatly  enlarged  the  operation  and 
increased  the  efficiency  of  the  general  doctrine  under  dis- 
cussion. Wherever  the  true  spirit  of  the  reformed  pro- 
cedure has  been  accepted  and  followed,  the  courts  not  only 
permit  legal  and  equitable  causes  of  action  to  be  joined, 
and  legal  and  equitable  remedies  to  be  prayed  for  and 
obtained,  but  will  grant  purely  legal  reliefs  of  possession, 
compensatory  damages,  pecuniary  recoveries,  and  the  like, 
in  addition  to  or  in  place  of  the  specific  equitable  reliefs 
demanded  in  a  great  variety  of  cases  which  would  not  have 
come  within  the  scope  of  the  general  principle  as  it  was 
regarded  and  acted  upon  by  the  original  equity  jurisdic- 
tion, and  in  which,  therefore,  a  court  of  equity  would  have 
refrained  from  exercising  such  a  jurisdiction.^     The  full 

§  242,    (b)    The  text  is  quoted  in  under    the    statute,    against    adverse 

Asher  v.  Uhl,  122  Ky.  114,  87  S.  W.  claims). 

307,  93  S.  W.  29  (the  court  having  §  242,  (e)  Cited  in  Thomson  v. 
jurisdiction  to  remove  cloud  from  Locke,  66  Tex.  3S3;  Swope  v.  Mis- 
plaintiff's  title   may  quiet  his  title,  souri  Trust   Co.,   26   Tex.   Civ.   App. 


389 


JURISDICTION    EMBRACES    WHOLE    MATTER. 


§242 


discussion  of  this  great  change  wrought  by  the  modern 
legislation  is  postponed  to  a  subsequent  chapter;  I  shall 
merely  place  in  the  foot-note  a  few  illustrative  cases  as 
examples  of  the  manner  in  which  the  scope  of  the  equitable 
jurisdiction  has  been  thus  enlarged.^ 

§242,  1  Laiib  v.  Buckmiller,  17  N.  Y.  620,  626;  Lattin  v.  McCarty,  41 
N.  Y.  107,  109,  110;  Davis  v.  Lamberton,  56  Barb.  480,  483;  Brown  v. 
Brown,  4  Rob.  (N.  Y.)  688,  700,  701;  Welles  v.  Yates,  44  N.  Y.  525;  Cone 
V.  Niagara  Ins.  Co.,  60  N.  Y.  619,  3  Thomp.  &  C.  33 ;  Anderson  v.  Hunn, 
5  Hun,  79 ;  N.  Y.  Ice  Co.  v.  N.  W.  Ins.  Co.,  23  N.  Y.  357,  359 ;  Cahoon  v. 
Bank  of  Utica,  7  N.  Y.  486;  Broiestedt  v.  South  Side  R.  R.,  55  N.  Y. 
220,  222;  Linden  v.  Hepburn,  3  Sand.  668,  671;  Bidwell  v.  Astor  Ins. 
Co.,  16  N.  Y.  263,  267;  Phillips  v.  Gorhani,  17  N.  Y.  270;  Caswell  v. 
West,  3  Thomp.  &  C.  383 ;  Graves  v.  Spier,  58  Barb.  349,  383,  384 ;  Stern- 
berger  v.  McGovern,  56  N.  Y.  12;  Marquat  v.  Marquat,  12  N.  Y.  336; 
Barlow  v.  Scott,  24  N.  Y.  40,  45;  Emery  v.  Pease,  20  N.  Y.  62,  64;  Brad- 
ley v.  Aldrich,  40  N.  Y.  504,  100  Am.  Dec.  528 ;  Walker  v.  Sedgwick,  8 
Cal.  398 ;  Gray  v.  Dougherty,  25  Cal.  266 ;  Henderson  v.  Dickey,  50  Mo. 
161,  165;  Guernsey  v.  Am.  Ins.  Co.,  17  Minn.  104,  108;  Montgomery  v. 
McEwen,  7  Minn.  351 ;  Turner  v.  Pierce,  34  Wis.  658,  665 ;  McNeady  v. 
Hyde,  47  Cal.  481,  483 ;  Tenney  v.  State  Bank,  20  Wis.  152 ;  Leonard  v. 
Logan,  20  Wis.  540,  542;  Foster  v.  Watson,  16  B.  Mon.  377,  387;  Wliite 


133,  62  S.  W.  947;  McMullen  Lum- 
ber Co.  V.  Strother,  136  Fed.  295, 
69  C.  C.  A.  433  (having  jurisdiction 
for  accounting  may  grant  full  re- 
lief though  some  of  the  breaches  of 
contract  might  be  tried  at  law) ; 
Louisville  &  N.  R.  Co.  v.  Bitterman, 
144  Fed.  34,  75  C.  C.  A.  192;  Sprinkle 
V.  Wellborn,  140  N.  C.  163,  111  Am. 
St.  Rep.  827,  3  L.  R.  A.  (N.  S.)  174, 
52  S.  E.  666  (personal  judgment 
against  grantee  who  has  conveyed 
to  a  io7ia  fide  purchaser) ;  Liverman 
V.  Cahoon,  156  N.  C.  187,  72  S.  E. 
327,  dissenting  opinion;  Pritchard  v. 
Smith,  160  N.  C.  79,  75  S.  E.  803 
(damages  where  fraudulent  grantee 
has  conveyed  to  bona  fide  purchaser)  ; 
quoted,  Armstrong  v.  Mayer  (Neb.), 
95  N.  W.  51.  See,  also,  Kayser  v. 
Mongham,   8   Colo.   232,   6  Pac.   803; 


Danielson  v.  Gude,  11  Colo.  87,  17 
Pac.  283;  Bullion,  B.  &  C.  Min.  Co. 
V.  Eureka  Hill  Min.  Co.,  5  Utah,  3, 
11  Pac.  515;  Giant  Powder  Co.  v. 
San  Diego  Flume  Co.,  78  Cal.  193,  20 
Pac.  419;  Murtha  v.  Curley,  90  N.  Y. 
373;  Larrabee  v.  Given  (Neb.),  91 
N.  W.  504;  Evans  v.  McConnell 
(Iowa),  63  N.  W.  570;  Disher  v. 
Disher,  45  Neb.  100,  63  N.  W.  368; 
Green  Bay  Lumber  Co.  v.  Miller 
(Iowa),  62  N.  W.  742;  Turner  v. 
Newman  (Ky.),  39  S.  W.  504;  Val- 
entine V.  Eichards,  126  N.  Y.  272, 
27  N.  E.  255;  Hull  v.  Bell,  54  Ohio, 
228,  43  N.  E.  584;  Hanna  v.  Reeves, 
22  Wash.  6,  60  Pac.  62;  Field  v.  Holz- 
man,  93  Ind.  205;  Watson  v.  Sutro, 
S6  Cal.  500,  24  Pac.  172,  25  Pac.  64; 
McLennan  v.  Church,  163  Wis.  411, 
158  N.  W.  73. 


EQUITY    JURISPRUDENCE.  390 

V.  Lyons,  42  Cal.  279,  282.  The  decisions,  however,  are  not  entirely 
unanimous.  In  some  cases  the  court  has  not  only  refused  to  accept  and 
act  upon  the  spirit  of  the  reformed  procedure,  but  has  even,  as  it  would 
seem,  failed  to  recognize  the  principle  which  belonged  to  the  original 
jurisdiction  of  equity,  the  principle  that,  having  obtained  a  jurisdiction 
for  any  purpose,  the  court  might  and  should  give  full  relief  and  do  com- 
plete justice.  See  Hudson  v.  Caryl,  44  N.  Y.  553 ;  Supervisors  v.  Decker, 
30  Wis.  624,  626-630 ;  Noonan  v.  Orton,  21  Wis.  283 ;  Horn  v.  Ludding- 
ton,  32  Wis.  73 ;  Dickson  v.  Cole,  34  Wis.  621,  625 ;  Turner  v.  Pierce,  34 
Wis.  658,  665;  Deery  v.  McClintock,  31  Wis.  195;  Lawe  v.  Hyde,  39  Wis. 
345;  Cord  v.  Lackland,  43  Mo.  139;  Bobb  v.  Woodward,  42  Mo.  482; 
Peyton  v.  Rose,  41  Mo.  257,  and  other  similar  cases  in  Missouri,  whick 
were  all,  however,  overruled  in  the  later  case  of  Henderson  v.  Dickey, 
50  Mo.  161,  165,  in  which  the  court  adopted  and  acted  upon  the  true 
spirit  and  intent  of  the  reformed  procedure. 


391  TO   PREVENT  A  MULTIPLICITY    OF    SUITS.  §  243 


SECTION  IV. 

THE  DOCTRINE   THAT  JURISDICTION  EXISTS  IN  ORDER   TO 
PREVENT  A  MULTIPLICITY  OF  SUITS. 

ANALYSIS. 
§  243.     The  doctrine  applies  to  both  kinds  of  jurisdiction. 
§  244.     The  questions  to  be  examined  stated. 

§  245.     Four  possible  classes  of  cases  to  which  the  doctrine  may  apply. 
§§  246-248.     "Bills  of  peace,"  rationale  of,  and  examples. 

§  248.     Bills  "to  quiet  title"  explained. 
§§  249-251.     Rationale  of  the  doctrine  examined  on  principle. 

[§2511/^.     Jurisdiction  not  exercised  when  that  would  be  ineffectual;   sim- 
plifying of  the  issues  essential. 
S  261%.     There  must  be  a  practical  necessity  for  the  exercise  of  the  juris- 
diction.] 
§§  252-261.     Examination  of  the  doctrine  upon  judicial  authority. 

§  252.     First  class. 
§§  253,  254.     Second  class. 
§§  255-261.     Third  and  fourth  classes. 

§256.     Community  of  interest:   "Fisheries  'Case";  "Case  of  the  Duties." 
§  257.     Where  proprietors   of  distinct  tracts   of  land  have  been   injured 

by  one  wrong. 
§  258.     "Where  proprietors  of  distinct  tracts  of  land  have  been  relieved 
from  illegal  local  assessments. 
§§259,260.     General   rule  as   to   relief   from  illegal   taxes,    assessments,   and 
public  burdens,  on  the  ground  of  multiplicity  of  suits, 
§  261.     Other  special  cases  of  the  third  and  fourth  classes. 
§§  262-266.     Examination  of  opposing  decisions;   conclusions  reached  by  such 
decisions. 
§  263.     In  the  first  and  second  classes. 
§§  264-266.     In  the  third  and  fourth  classes. 
§§265,266.     In  cases  of  illegal  taxes  and  other  public  burdens. 
§§  267-270.     Conclusions  derived  from  the  entire  discussion. 
§§  268-270.     Ditto  as  to  the  third  and  fourth  classes. 

§§  271-274.     Enumeration  of  cases  in  which  the  jurisdiction  to  avoid  a  multi- 
plicity of  suits  has  been  exercised. 
§  271,     Cases  of  the  first  class. 
§  272.     Cases  of  the  second  class. 
§  273.     Cases  of  the  third  class. 
§  274.     Cases  of  the  fourth  class. 
§  275.     The  jurisdiction  based  upon  statute. 

§243.a    Applies   to   Both  Kinds   of  Jurisdiction.— The 
doctrine  that  a  court  of  equity  may  take  cognizance  of  a 

§243,  (a)   This  section  is  cited  in       Clunie,  88  Fed.  160,  167;  Pretopa  v. 
Liverpool    &    L.    &    G.    Ins.    Co.    v.       Maxwell  Land  Grant  Co.  (C.  C.  A.), 


§2-13 


EQUITY    JURISPRUDENCE. 


392 


controversy,  dotermine  the  rights  of  all  the  parties,  and 
grant  the  relief  requisite  to  meet  the  ends  of  justice,  in 
order  to  prevent  a  multiplicity  of  suits,  has  already  been 
briefly  mentioned  in  a  preceding  section  upon  the  "concur- 
rent jurisdiction."  The  same  remarks  which  were  made 
at  the  commencement  of  the  last  section  concerning  the 
general  principle  that  when  a  court  of  equity  has  acquired 
jurisdiction  over  part  of  a  matter,  or  over  a  matter  for 
some  particular  purpose,  it  may  go  on  and  determine  the 
whole  controversy  and  confer  complete  relief,  apply  with 
equal  truth  and  force  to  the  doctrine  now  under  considera- 
tion, and  need  not  therefore  be  repeated.^     Like  that  gen- 


§  243,  1  See  ante,  §  181. 

50  Fed.  674;  Kellogg  v.  Chenango 
Valley  Sav.  Bk.,  42  N.  Y.  Supp.  379, 
11  App.  Div.  458;  Golden  v.  Health 
Department,  47  N.  Y.  Supp.  623,  21 
App.  Div.  420;  State  v.  Sunapee  Dam 
Co.  (jST.  H.),  55  Atl.  899;  Dennrs  r. 
Mobile  &  Montgomery  R'y  Co.,  137 
Ala.  649,  657,  97  Am.  St.  Rep.  69,  72, 
35  South.  30;  and  in  City  of  St. 
Mary's  v.  Hope  Natural  Gas  Co.,  71 
W.  Va.  76,  43  L.  R.  A.  (N.  S.)  994,  76 
S.  E.  841.  The  chapter  is  cited  gener- 
ally in  Hale  v.  Allinson,  188  U.  S.  56, 
23  Sup.  Ct.  244,  a  case  recognizing  but 
distinguishing  the  author's  "fourth 
class";  Pollock  v.  Okolona  Sav.  Inst., 
61  Miss.  293,  a  case  recognizing  the 
author's  "fourth  class";  Van  Auken 
V.  Dammeier,  27  Or.  150,  40  Pac.  89, 
recognizing  but  distinguishing  the 
"third  class";  Hughes  v.  Hannah,  39 
Fla.  356,  379,  22  South,  613;  Wad- 
dingham  v.  Eobledo,  6  N.  M.  347,  28 
Pac.  663;  Bradley  v.  Bradley,  165 
N.  Y.  183,  58  N.  E'.  887;  McCon- 
naughy  v.  Pennoyer,  43  Fed.  342; 
Muncie  Nat.  Gas  Co.  v.  City  of 
Muncie,  160  Ind.  97,  66  N.  E.  436; 
Turner  v.  City  of  Mobile,  135  Ala. 
73,  33  South.  133,  140;  and  in  Steger 


&  Sons  Piano  Mfg.  Co.  ▼.  MacMaster, 
51  Tex.  Civ.  App.  527,  113  S.  W. 
337  (affirmed  by  supreme  court  of 
Texas);  Simpson  v.  McGuirk  (Tex. 
Civ.  App.),  194  S.  W.  979;  Illinois 
Central  R.  Co.  v.  Baker,  155  Ky.  512, 
49  L.  E.  A.  (N.  S.)  496,  159  S.  W. 
1169. 

The  proofs  of  this  chapter,  in  the 
third  edition,  were  read  by  the  late 
Professor  James  Barr  Ames,  Dean 
of  the  Harvard  Law  School,  who 
wrote  to  the  editor  expressing  his 
entire  agreement  with  both  the  text 
and  the  editorial  notes.  As  Profes- 
sor Ames  was,  beyond  question,  the 
profoundest  student  of  Equity  in  the 
generation  succeeding  the  author,  it 
is  a  great  satisfaction  to  be  able  to 
cite  his  authority  in  support  of  the 
author's  conclusions.  It  is  a  further 
satisfaction  to  find  that  the  cases 
which  have  subjected  those  conclu- 
sions to  hostile  criticism,  within  the 
last  thirteen  years,  were,  without  ex- 
ception, cases  which,  on  their  facts, 
fell  within  the  limitations  of  the 
doctrine  as  explained  in  §§  250,  251, 
251%,  and  251%;  and  which,  there- 
fore, were  not,  on  any  theory,  proper 


393  TO   PREVENT   A   MULTIPLICITY    OF    SUITS.  §  244 

€ral  principle,  the  ** prevention  of  a  multiplicity  of  suits" 
produces  a  material  effect  upon  both  the  concurrent  and 
the  exclusive  jurisdictions.^  It  is  sometimes  one  of  the 
very  foundations  of  the  concurrent  jurisdiction, — an  effi- 
cient cause  of  its  existence.  In  fact,  the  ''multiplicity  of 
suits"  which  is  to  be  prevented  constitutes  the  very  inade- 
quacy of  legal  methods  and  remedies  which  calls  the  con- 
current jurisdiction  into  being  under  such  circumstances, 
and  authorizes  it  to  adjudicate  upon  purely  legal  rights, 
and  confer  purely  legal  reliefs.*^  On  the  other  hand,  the 
prevention  of  a  multiplicity  of  suits  is  the  occasion  for  the 
exercise  of  the  exclusive  jurisdiction.  The  multiplicity  of 
suits  to  be  avoided,  which  are  generally  actions  at  law,<i 
shows  that  the  legal  remedies  are  inadequate,  and  cannot 
meet  the  ends  of  justice,  and  therefore  a  court  of  equity 
interferes,  and  although  the  primary  rights  and  interests 
of  the  parties  are  legal  in  their  nature,  it  takes  cognizance 
of  them,  and  awards  some  specific  equitable  remedy,  which 
gives,  perhaps  in  one  proceeding,  more  substantial  relief 
than  could  be  obtained  in  numerous  actions  at  law.  This 
is  the  true  theory  of  the  doctrine  in  its  application  to  the 
two  jurisdictions.® 

§  244.  Questions  Stated.^ — The  general  and  vague  state- 
ment, that  equity  will  interfere  and  take  cognizance  of  a 
matter  in  order  to  prevent  a  multiplicity  of  suits,  is  made 

subjects  for  equity  jurisdiction.    The  Edgerton,  12  Mont.  122,  33  Am.  St. 

reasonableness   of  the   author's   con-  Rep.  557,  16  L.  R.  A.  94,  29  Pac.  966. 

elusions  is  sufficiently  vindicated  by  §  243,    (d)     Cited    and    explained, 

the  fact  that  no  case  whatever  was  Allegany  &  K.  R.  R.  Co.  v.  Weiden- 

found,  within  that  period,  in  which  feld,  25  N.  Y.  Supp.  71,  76,  5  Misc. 

a  denial  of  the  doctrine  was  essen-  Rep.  43. 

tial    to    the    court's    decision:     See  §243,    (e)    The   text  is   quoted   in 

§  264,  note.  Christian  Feigenspan  v.  Nizolek,  71 

§  243,   (b)    The   text  is   quoted  in  N.  J.  E'q.  382,  65  Atl.  703. 

Asher  v.  Uhl,  122  Ky.  114,  87  S.  W.  §244,   (a)   This  and  the  following 

307,  93  S.  W.  29.  sections  are  cited  in  American  Cest. 

§  243,  (c)  Quoted,  Louisville,  N.  A.  Ins.  Co.  v.  Landau,  56  N.  .1.  Eq.  513, 

&  C.  R.  R.  Co.  V.  Ohio  Val.,  I.  &  C.  39  Atl.  400,  a  case  belonging  in  the 

Co.,    57    Fed.    42,    45;    Edgerton    v.  author's  "third  class." 


§  245  EQUITY    JURISPRUDENCE.  394 

in  innumerable  judicial  dicta,  and  the  general  doctrine  is 
asserted  in  many  decisions.  But  when  we  inquire  what  is 
the  exact  extent  of  this  doctrine,  in  what  kinds  and  classes 
of  cases  is  a  court  of  equity  empowered  to  exercise  its 
jurisdiction  and  administer  reliefs,  in  order  to  prevent  a 
multiplicity  of  suits,  we  shall  find  not  only  a  remarkable 
uncertainty  and  incompleteness  in  the  judicial  utterances, 
but  even  a  direct  conflict  of  decisions.  Indeed,  the  diffi- 
culty is  still  more  fundamental.  The  courts  are  not  only 
at  variance  with  respect  to  the  particular  classes  of  cases 
in  which  the  doctrine  should  be  applied,  and  their  jurisdic- 
tion thereby  asserted,  but  they  seem  also  to  be  unsettled 
even  with  respect  to  the  meaning,  theory,  or  rationale  of 
the  doctrine  itself  as  a  foundation  of  their  jurisdiction  or 
an  occasion  for  its  exercise.  That  this  language  does  not 
misrepresent  the  attitude  of  the  courts  will  most  clearly 
appear  from  decisions  cited  in  subsequent  paragraphs.  It 
is  a  matter  of  great  practical  importance  to  end,  if  possible, 
this  condition  of  doubt  and  uncertainty.  I  purpose,  there- 
fore, so  far  as  I  may  be  able,  to  ascertain  and  explain  the 
true  meaning  and  rationale  of  the  doctrine  concerning  the 
prevention  of  a  multiplicity  of  suits  as  a  source  or  an  occa- 
sion of  the  equity  jurisdiction ;  to  determine  upon  principle, 
and  from  the  weight  of  judicial  authority,  the  extent  of  its 
operation,  and  the  limits  which  have  been  placed  upon  it; 
and  finally,  to  describe  the  various  kinds  and  classes  of 
cases  in  which  the  equity  jurisdiction  may  or  may  not  be 
exercised  in  pursuance  of  this  doctrine. 

§  245.  Possible  Conditions  in  Which  the  Doctrine  may 
Apply.^ — It  will  aid  us  in  reaching  the  true  theory  as  well 
as  in  determining  the  extent  and  limitations  of  the  doc- 

§245,  (a)  This  section  is  cited  gen-  Co.   v.   Smith    (C.   C.   A.),    128   Fed. 

erally  in  M'Mullin's  Adm'r  v.  Sand-  1,  6.     Sections  245-256  are  cited  in 

ers,  79  Va.  356,  364,  and  in  Watson  Supreme   Lodge   of  Fraternal   Union 

V.    Huntington,    215    Fed.    472,    131  of  America  v.  Ray  (Tex.  Civ.  App.), 

C.  C.   A.  520.     Sections  245-273  are  166  S.  W.  46. 
cited  generally  in  Louisville  &  N.  R. 


395  TO   PREVENT   A   MULTIPLICITY    OF    SUITS.  §  245 

trine,  if  we  can  fix  at  the  outset  all  the  possible  conditions 
in  which  a  multiplicity  of  suits  can  arise,  and  can  thus  fur- 
nish a  source  of  or  occasion  for  the  equity  jurisdiction  in 
their  prevention  by  settling  all  the  controversy  and  all  the 
rights  in  one  single  judicial  proceeding.  All  these  possible 
conditions  may  be  reduced  to  the  four  following  classes: 
1.  Where,  from  the  nature  of  the  wrong,  and  from  the 
settled  rules  of  the  legal  procedure,  the  same  injured  party, 
in  order  to  obtain  all  the  relief  to  which  he  is  justlj'-  en- 
titled, is  obliged  to  bring  a  number  of  actions  against  the 
same  wrong-doer,  all  growing  out  of  the  one  wrongful  act 
and  involving  similar  questions  of  fact  and  of  law.  To 
this  class  would  belong  cases  of  nuisance,  waste,  continued 
trespass,  and  the  like.^  2.  Where  the  dispute  is  between 
two  individuals,  A  and  B,  and  B  institutes  or  is  about  to 
institute  a  number  of  actions  either  successively  or  simul- 
taneously against  A,  all  depending  upon  the  same  legal 
questions  and  similar  issues  of  fact,  and  A  by  a  single 
equitable  suit  seeks  to  bring  them  all  within  the  scope  and 
effect  of  one  judicial  determination.  A  familiar  example 
of  one  branch  of  this  class  is  the  case  where  B  has  brought 
repeated  actions  of  ejectment  to  recover  the  same  tract  of 
land  in  A's  possession,  and  A  finally  resorts  to  a  suit  in 
equity  by  which  his  own  title  is  finally  established  and 
quieted,  and  all  further  actions  of  ejectment  by  B  are  en- 
joined.*^ 3.  Where  a  number  of  persons  have  separate  and 
individual  claims  and  rights  of  action  against  the  same 

§245,    (b)    The   text  is   quoted  in  Seed   Co.,    65   Miss.   391,   7   Am.   St. 

St.   Louis    Southwestern   Ey.    Co.   of  Rep.    671,    4    South.    298;    Cragg    v. 

Texas  v.  Woldert  Grocery  Co.  (Tex.  Levinson,   238   111.   69,  21   L.  R.  A. 

Civ.   App.),   162   S.   W.   1174;    Chris-  (N.   S.)   417,  87  N.  E.  121,  cases  of 

tian  Feigenspan  v.  Nizolek,  71  N.  J.  this   class. 

Eq.  382,  65  Atl.  703;  Illinois  Central  §245,    (c)    The   text   is   quoted   in 

E.    Co.    V.    Baker,    155    Ky.    512,   49  St.    Louis    Southwestern   Ey.    Co.    v. 

L,  R.  A.  (N.  S.)  496,  159  S.  W.  1169.  Woldert     Grocery     Co.     (Tex.     Civ. 

This   section   is   cited  in   Preteca   v,  App.),  162  S.  W.  1174;  Illinois  Cen- 

Maxwell  Land  Grant  Co.,  1  C.  C.  A.  tral  E.  Co.  v.  Baker,  155   Ky.  512, 

607,  50  Fed.   674;   Golden   v.  Health  49  L.  R.  A.    (N.  S.)   496,  159  S.  W. 

Department,  47  N.  Y.  Supp.  623,  21  1169. 
App.  Div.  420;  Warren  Mills  v.  N.  O. 


§245 


EQUITY    JURISPRUDENCE. 


396 


party,  A,  but  all  arise  from  some  common  cause,  are 
governed  by  the  same  legal  rule,  and  involve  similar  facts, 
and  the  whole  matter  might  be  settled  in  a  single  suit 
brought  by  all  these  persons  uniting  as  co-plaintiffs,  or  one 
of  the  persons  suing  on  behalf  of  the  others,  or  even  by  one 
person  suing  for  himself  alone.*^  The  case  of  several 
owners  of  distinct  parcels  of  land  upon  which  the  same 
illegal  assessment  or  tax  has  been  laid  is  an  example  of 
this  class.  4.  Where  the  same  party.  A,  has  or  claims  to 
have  some  common  right  against  a  number  of  persons,  the 
establishment  of  which  would  regularly  require  a  separate 
action  brought  by  him  against  each  of  these  persons,  or 
brought  by  each  of  them  against  him,  and  instead  thereof 
he  might  procure  the  whole  to  be  determined  in  one  suit 
brought  by  himself  against  all  the  adverse  claimants  as 
co-defendants.®    It  should  be  observed  in  this  connection 


§  245,  (d)  Quoted,  Pennefeather  v. 
Baltimore  Steam  Packet  Co.,  58  Fed. 
481;  Boyd  v.  Schneider  (C.  C.  A.), 
131  Fed.  223,  reversing  124  Fed.  239; 
Washington  Co.  v,  Williams,  111 
Fed.  801,  815,  49  C.  C.  A.  621,  dis- 
senting opinion  of  Sanborn,  Cir.  J.; 
Lovett  V.  Prentice,  44  Fed.  459; 
Osborne  v.  Wisconsin  Cent.  E.  Co., 
43  Fed.  824,  by  Harlan,  J.;  City  of 
Chicago  V.  Collins,  175  111.  445,  51 
N.  E.  907;  American  Cent.  Ins.  Co. 
V.  Landau,  56  N.  J.  Eq.  513,  39  Atl. 
400;  Turner  v.  City  of  Mobile,  135 
Ala.  73,  33  South.  133;  Snyder  v. 
Harding  (Wash.),  75  Pac.  812;  and 
in  Ripinsky  v.  Hinchman,  181  Fed. 
786,  105  C.  C.  A.  462;  Chew  v.  First 
Presbyterian  Church  of  Wilmington, 
237  Fed.  219;  Creer  v.  Bancroft 
Land  &  Irr.  Co.,  13  Idaho,  407,  90 
Pac.  228;  Cloyes  v.  Middlebury  Elec- 
tric Co.,  80  Vt.  109,  11  L.  B.  A. 
(N.  S.)  693,  66  Atl.  1039;  St.  Louis 
Southwestern  Ry.  Co.  v.  Woldert 
Grocery  Co.  (Tex.  Civ.  App.),  162 
S.  W.   1174;  Illinois  Central  R.  Co. 


V.  Baker,  155  Ky.  512,  49  L.  R.  A. 
(N.  S.)  496,  159  S.  W.  1169.  This 
section  is  cited  in  Liverpool  &  L.  & 
G.  Ins.  Co.  V.  Clunie,  88  Fed.  160, 
167;  Sullivan  Timber  Co.  v.  City  of 
Mobile,  110  Fed.  186;  Virginia-Caro- 
lina Chemical  Co.  v.  Home  Ins.  Co., 
113  Fed.  1,  5,  cases  of  this  class; 
and  in  Rochester  German  Ins.  Co.  v. 
Schmidt,  175  Fed.  720,  99  C.  C.  A. 
296. 

§  245,  (e)  This  section  is  cited  in 
De  Forest  v.  Thompson,  40  Fed.  375; 
Lasher  v.  McCreery,  66  Fed.  834, 
843;  New  York  Life  Ins.  Co.  v. 
Beard,  80  Fed.  66,  eases  of  the 
"fourth  class."  Quoted,  City  of 
Chicago  V.  Collins,  175  111.  445,  49 
L.  R.  A.  408,  51  N.  E.  907;  Boyd  v. 
Schneider  (C.  C.  A.),  131  Fed.  223, 
reversing  124  Fed.  239.  Also  quoted 
in  St.  Louis  Southwestern  Ry.  Co.  v. 
Woldert  Grocery  Co.  (Tex.  Civ. 
App.),  162  S.  W.  1174;  Cloyes  v. 
Middlebury  Electric  Co.,  80  Vt.  109, 
11  L.  R.  A.  (N.  S.)  693,  66  Atl. 
1039;     Illinois     Central    R.     Co.     v. 


397  TO   PREVENT   A   MULTIPLICITY    OF    SUITS.  §  2-i6 

that  the  prevention  of  a  multiplicity  of  snits  as  a  ground 
for  the  equity  jurisdiction  does  not  mean  the  complete  and 
absolute  interdiction  or  prevention  of  any  litigation  con- 
cerning the  matters  in  dispute,  but  the  substitution  of  one 
equitable  suit  in  place  of  the  other  kinds  of  judicial  pro- 
ceeding, by  means  of  which  the  entire  controversy  may  be 
finally  decided.  The  further  discussion  will  involve  the  in- 
quiry whether  the  doctrine  in  question  is  applied  to  all  of 
the  foregoing  classes  of  cases;  and  if  so,  what  are  the 
extent  and  limitations  of  its  operation  in  each  class?  In 
pursuing  this  discussion,  I  shall  examine,  first,  in  order, 
the  rationale,  extent,  and  general  operations  of  the  doc- 
trine ;  then  the  limitations  upon  it ;  and  finally,  the  particu- 
lar instances  of  its  application,  arranged  according  to  the 
foregoing  classes. 

§  246.  Bills  of  Peace. — The  earliest  instances  in  which 
the  court  of  chancery  exercised  its  jurisdiction,  avowedly 
upon  the  ground  of  preventing  a  multiplicity  of  suits,  ap- 
pear to  have  been  called  ''bills  of  peace,"  of  which  there 
were  two  distinct  kinds.  One  of  these  was  brought  to 
establish  a  general  right  between  a  single  party  on  the  one 
side,  and  numerous  persons  claiming  distinct  and  indi- 
vidual interests  on  the  other,  plainly  corresponding,  iu 
part  at  least,  with  the  third  and  fourth  classes  mentioned 
in  the  preceding  paragraph.  The  other  kind  was  permitted 
to  quiet  the  complainant's  title  to  and  possession  of  land, 
and  to  restrain  any  further  actions  of  ejectment  to  recover 
the  premises  by  a  single  adverse  claimant,  after  several 
successive  actions  had  already  been  prosecuted  without  suc- 
cess, on  the  ground  that  the  title  could  never  be  finally 
established  by  an  indefinite  repetition  of  such  legal  actions, 
and  justice  demanded  that  complainant  should  be  protected 
against  vexatious  litigation.     This  form  of  the  original  bill 

Baker,  155  Ky.  512,  49  L.  R.  A.  is  paraphrased  in  Vandalia  Coal  Co. 
(N.  S.)  496,  159  S.  W.  1169.  The  v.  Lawson,  43  Ind.  App.  226,  87 
author's  statement  of  the  four  classes      N.  E.  47. 


§  247  EQUITY   JURISPRUDENCE.  398 

of  peace  corresponds  to  the  first  branch  of  the  second  class 
described  in  the  preceding  paragraph. ^  * 

§  247.  One  of  the  most  frequent  purposes  of  such  suits 
to  establish  a  general  right,  in  earlier  periods,  seems  to 
have  been  the  ascertaining  and  settling  the  customs  of  a 
manor,  where  they  were  in  dispute  between  the  lord  of  a 
manor  and  his  tenants  or  copyholders,  or  between  the  ten- 
ants of  two  different  manors.  A  bill  might  be  filed  on 
behalf  of  the  whole  body  of  tenants  or  copyholders  of  a 
particular  manor  against  their  lord,  or  perhaps  against  the 
lord  or  tenants  of  another  manor;  or  it  might  be  filed  by 
the  lord  himself  against  his  tenants;  and  by  the  decree  in 
such  suit,  questions  concerning  various  rights  of  common, 
or  concerning  fines  or  other  services  due  to  the  lord,  or 
other  like  matters  affecting  all  the  parties,  could  be  finally 
established,  which  would  otherwise  require  perhaps  a  mul- 
titude of  individual  actions.  From  this  early  purpose  the 
jurisdiction  was  easily  extended  so  as  to  embrace  a  great 
number  of  different  but  analogous  objects.^  * 

§246,  11  Spence's  Eq.  Jur.  657,  658;  Jeremy's  Eq.  Jur.  344^347; 
Adams's  Equity,  199-202;  6th  Am.  ed.  406-410. 

§  247,  1 1  Spence's  Eq.  Jur.  657.  In  Lord  Tenham  v.  Herbert,  2  Atk. 
483,  Lord  Hardwicke  thus  described  these  bills :  "It  is  certain  that  where 
a  man  sets  up  a  general  and  exclusive  right,  and  where  the  persons  who 
controvert  it  are  very  numerous,  and  he  cannot  by  one  or  two  actions  at 
law  quiet  that  right,  he  may  come  into  this  court  first,  which  is  called  a 
bill  of  peace,  and  the  court  will  direct  an  issue  to  determine  the  right,  as 
in  disputes  between  lords  of  manors  and  their  tenants,  and  between 
tenants  of  one  manor  and  another;  for  in  these  cases  there  would  be  no 
end  of  bringing  actions  of  trespass,  since  each  action  would  determine 

§246,    (a)    The    text    is    cited    in  Nelson  Co.,  157  Wis.  241,  147  N.  W. 

Boston  &  Montana  C.  C.  &  S.  M.  Co.  13.     The  distinction  between  the  two 

V.   Montana   Ore   P.    Co.,    188   U.    S.  classes    of   bills   of   peace   is   clearly 

632,  23  Sup.  Ct.  434;  also  in  Vandalia  stated  in  Sharon  v.  Tucker,  144  U.  S. 

Coal  Co.  V.  Lawson,  43  Ind.  App.  226,  542,   12  Sup.  Ct.  720,  by  Field,  J. 
87  N.  E.  47;  Cumberland  Tel.  &  Tel.  §247,  (a)   This  paragraph  is  cited 

Go.   V.   Williamson,    101    Miss.    1,   57  in  Vandalia  Coal  Co.  v.  Lawson,  43 

South.  559;  Chaput  v.  Bock,  224  Mo.  Ind.  App.  226,  87  N.  E.  47. 
73,   123   S.   W.   16;   Franke   v.  H.   P. 


399  TO    PREVENT   A   MULTIPLICITY    OF    SUITS.  §  248 

§  248.  Bills  to  Quiet  Title. — The  grounds  and  purposes 
of  the  second  form  of  the  ''bill  of  peace,"  as  it  was  origi- 
nally adopted,  are  very  clearly  stated  by  Lord  Redesdale 
in  his  well-known  and  authoritative  treatise  upon  equity 
pleadings:  "In  many  cases,  the  courts  of  ordinary  juris- 
diction admit,  at  least  for  a  certain  time,  of  repeated  at- 
tempts to  litigate  the  same  question.  To  put  an  end  to 
the  oppression  occasioned  by  the  abuse  of  this  privilege, 

only  the  particular  right  in  question  between  the  plaintiff  and  the  de- 
fendant." See  also  the  same  proposition  by  Lord  Eldon,  in  Hanson  v. 
Gardiner,  7  Ves.  309,  310.  It  is  not  my  pui-pose  in  this  place  to  enter 
into  any  full  discussion  of  "bills  of  peace."  I  shall  therefore  merely 
add  some  cases  as  examples  of  the  extension  of  the  doctrine,  and  of  its 
application  to  establish  general  rights  of  various  kinds.  Suits  have 
been  sustained  by  a  lord  against  tenants  of  the  manor,  and  by  tenants 
against  their  lord,  to  establish  common  and  similar  rights,  or  to  estab- 
lish the  amount  of  fines  payable  by  copyhold  tenants,  by  a  party  in  pos- 
session against  adverse  claimants  to  establish  a  toll,  or  right  to  the 
profits  of  a  fair;  by  a  parson  against  his  parishioners  for  tithes;  and 
by  parishioners  against  their  parson  to  establish  a  modus,  etc. :  Cowper 
V.  Clerk,  3  P.  Wms.  157;  Midleton  v.  Jackson,  1  Ch.  18;  Powell  v.  Powis, 
1  Lon.  &  Jer.  159;  Brown  v.  Vermuden,  1  Cas.  Ch.  272;  Rudge  v.  Hop- 
kins, 2  Eq.  Cas.  Abr.,  p.  170,  pi.  27;  How  v.  Tenants  of  Bromsgrove,  1 
Vern.  22;  Pawlet  v.  Ingres,  1  Vern.  308;  EAvelme  Hospital  v.  Andover, 

1  Vern.  266;  Weekes  v.  Slake,  2  Vern.  301;  Arthington  v.  Fawkes,  2 
Vern.  356;  Conyers  v.  Abergavenny,  1  Atk.  284,  285;  Poor  v.  Clarke, 

2  Atk.  515;  Hanson  v.  Gardiner,  7  Ves.  305,  309,  310;  Corporation  of 
Carlisle  v.  Wilson,  13  Ves.  279,  280 ;  Ware  v.  Horwood,  14  Ves.  32,  33 ; 
Dilley  v.  Doig,  2  Ves.  486;  Duke  of  Norfolk  v.  Myers,  4  Madd.  83,  117; 
Shefiield  Water  Works  v,  Yeomans,  L.  R.  2  Ch.  8;  Phillips  v.  Hudson, 
L.  R.  2  Ch.  243.  Also  suits  by  proprietor  in  possession  claiming  exclu- 
sive right  of  fishery  in  certain  waters,  against  numerous  other  persons 
asserting  rights  to  fish  in  the  same  waters  by  separate  and  independent 
claims:  Mayor  of  York  v.  Pilkington,  1  Atk.  282;  Lord  Tenham  v.  Her- 
bert, 2  Atk.  483 ;  New  River  County  v.  Graves,  2  Vern.  431,  432.  Also 
a  suit  by  a  municipal  corporation  to  establish  a  common  duty  in  tlio 
nature  of  a  license  fee  against  a  large  number  of  persons,  among  whom 
there  was  no  privity  of  interest,  but  their  relations  with  each  other  were 
wholly  separate  and  distinct:  City  of  London  v.  Perkins,  3  Brown  Pari. 
Cas.,  Tomlins's  ed.,  602;  4  Brown  Pari.  Cas.  157.  But  see  Bouverie  v. 
Prentice,  1  Brown  Ch.  200;  Ward  v.  Duke  of  Northumberland,  2  Anstr. 
469. 


§248 


EQUITY   JUEISPEUDENCE. 


400 


the  courts  of  equity  have  assumed  a  jurisdiction.  Thus 
actions  of  ejectment,  which,  as  now  used,  are  not  part  of 
the  old  law,  have  become  the  usual  mode  of  trying  titles 
at  the  common  law,  and  judgments  in  those  actions  not 
being  conclusive,  the  court  of  chancery  has  interfered,  and 
after  repeated  trials  and  satisfactory  determinations  of  the 
question,  has  granted  perpetual  injunctions  to  restrain  fur- 
ther litigation,  and  thus  has  in  some  degree  put  that  re- 
straint upon  litigation  which  was  the  policy  of  the  ancient 
law  in  real  actions."  ^  * 

§  248,  1  Mitford's  (Lord  Redesdale)  Eq.  PI.  143,  144 ;  1  Spcnce's  Eq. 
Jur.  658.  This  particular  exercise  of  its  jurisdiction  was  not  finally 
established  by  the  court  of  chancery  without  a  considerable  struggle. 


§  248,  (a)  Quoted  in  Wolf  v.  Gall, 
174  Cal.  140,  162  Pac.  115.  Cited 
with  approval  in  Chaput  v.  Bock,  224 
Mo.  73,  123  S.  W.  16;  Bird  v.  Winger, 
24  Wash.  269,  64  Pac.  178;  Holland 
V.  Challen,  110  U.  S.  15,  3  Sup.  Ct. 
495;  Sharon  v.  Tucker,  144  U.  S. 
542,  12  Sup.  Ct.  720.  Per  Field,  J.: 
"To  entitle  the  plaintiff  to  relief  in 
such  cases  the  concurrence  of  three 
particulars  was  essential:  He  must 
have  been  in  possession  of  the  prop- 
erty; he  must  have  been  disturbed 
in  ita  possession  by  repeated  actions 
at  law;  and  he  must  have  estab- 
lished his  right  by  successive  judg- 
ments in  his  favor.  Upon  these 
facts  appearing  the  court  would 
interpose  and  grant  a  perpetual  in- 
junction to  quiet  the  possession  of 
the  plaintiff  against  any  further 
litigation  from  the  same  source.  It 
was  only  in  this  way  that  adequate 
relief  could  be  afforded  against  vexa- 
tious litigation  and  the  irreparable 
mischief  which  it  entailed.  Ad.  Eq. 
202;  Pom.  Eq.  ,Jur.,  §  248;  Stark  v. 
Starrs,  6  Wall.  409;  Curtis  v.  Sutter, 
15  Cal.  259;  Shipley  v.  Rangeley, 
Daveis  (3  Ware),  242;  Devonsher  v. 


Newenham,  2  Schoales  &  L.  208." 
The  opinion  in  Holland  v.  Challen, 
supra,  also  states  the  distinction  be- 
tween "bills  of  peace"  of  this  class, 
and  "bills  quia  timet"  to  remove  a 
cloud  on  title.  "A  bill  quia  timet,  or 
to  remove  a  cloud  upon  the  title  of 
real  estate,  differed  from  a  bill  of 
peace  in  that  it  did  not  seek  so 
much  to  put  an  end  to  vexatious  liti- 
gation respecting  the  property,  as  to 
prevent  future  litigation  by  remov- 
ing existing  causes  of  controversy 
as  to  its  title.  It  was  brought  in 
view  of  anticipated  wrongs  or  mis- 
chiefs, and  the  jurisdiction  of  the 
courts  was  invoked  because  the 
party  feared  future  injury  to  his 
rights  or  interests.  Story  Eq.  §  826. 
To  maintain  a  suit  of  this  character 
it  was  generally  necessary  that  the 
plaintiff  should  be  in  possession  of 
the  property,  and,  except  when  the 
defendants  were  numerous,  that  his 
title  should  have  been  established  at 
law  or  be  founded  on  undisputed  evi- 
dence or  long  continued  possession. 
Alexander  v.  Pendleton,  8  Cranch, 
462;  Peirsoll  v.  Elliott,  6  Pet.  95; 
Orton  v.  Smith,  13  How.  263." 


401  TO    PREVENT   A    MULTIPLICITY    OF    SUITS.  §  2-19 

§  249.  Rationale  of  the  Doctrine  on  Principle. ^ — Having 
thus  seen  the  historical  inception  of  the  doctrine  in  its 
earliest  application  to  suits  for  the  establishment  of  certain 
kinds  of  "general  rights,"  and  for  the  quieting  of  a  party's 
legal  title  by  restraining  further  actions  of  ejectment,  I 
shall  endeavor,  before  following  out  its  subsequent  develop- 
ment and  further  apiDlications,  to  examine  more  closely 
into  its  real  meaning,  and  to  ascertain  its  true  rationale 
and  theory.  What  multiplicity  of  suits  is  it  which  a  court 
of  equity  will  prevent?  What  party  must  be  harassed,  or 
incommoded,  or  threatened  with  numerous  litigations,  and 
from  whom  must  such  litigation  actually  and  necessarily 
proceed,  in  order  that  a  court  of  equity  may  take  jurisdic- 
tion, and  prevent  it  by  deciding  all  the  matter  in  one  de- 
cree? Finally,  how  far  is  the  prevention  of  a  multiplicity 
of  suits  an  independent  source  of  the  equitable  jurisdiction? 
Can  a  court  of  equity  ever  interfere  on  behalf  of  the  plain- 
In  one  case,  after  five  ejectment  trials,  in  all  of  which  a  verdict  was 
rendered  in  favor  of  the  complainant,  Lord  Chancellor  Cowper  refused 
to  interfere  and  restrain  further  actions  at  law;  but  his  decree  was  re- 
versed and  set  aside  on  appeal  by  the  House  of  Lords:  Earl  of  Bath  v. 
Sherwin,  Prec.  Ch.  261,  10  Mod.  1,  1  Brown  Pari.  Cas.  266,  270,  2  Brown 
Pari.  Cas.,  Tomlins's  ed.,  217.  The  title  of  the  complainant  in  equity 
must,  of  course,  have  been  satisfactorily  determined  in  his  favor  at  law 
before  a  court  of  equity  will  aid  him.  But  if  his  right  and  title  have 
been  thus  determined,  as  the  rule  is  now  well  settled,  a  court  of  equity 
will  interfere,  without  regard  to  and  without  requiring  any  particular 
number  of  trials  at  law,  whether  two  or  more,  even  after  one  trial  at  law : 
Leighton  v.  Leighton,  1  P.  Wms.  671,  672;  Devonsher  v.  Newenham,  2 
Schoales  &  L.  208,  209;  Earl  of  Darlington  v.  Bowes,  1  Eden,  270-272; 
Weller  v.  Smeaton,  1  Cox,  102,  1  Brown  Ch.  573 ;  Alexander  v.  Pendleton, 
8  Cranch,  462,  468;  Trustees  of  Huntington  v.  Nieholl,  3  Johns.  506, 
589-591,  595,  601,  602;  Eldridge  v.  Hill,  2  Johns.  Ch.  281,  282;  Patterson 
V.  McCamant,  28  Mo.  210;  Knowles  v.  Inches,  12  Cal.  212,  216;  Patter- 
son, etc.,  R.  R.  Co.  V.  Jersey  City,  9  N.  J.  Eq.  434;  Bond  v.  Little,  10  Ga. 
395,  400;  Harmer  v.  Gwynne,  5  McLean,  313,  315. 

§  249,  (a)  Cited,  Allegany  &  K.  E.       Eealty  Co.  v.  Haller,  128  Mo.  App, 
R.  Co.  v.  Weidenfeld,  25  N.  Y.  Supp.       66,  106  S.  W.  588. 
71,  76,  5  Misc.  Rep.  43;  also  in  Aimee 
1—26 


§  250  EQUITY    JUEISPRUDENCE.  402 

tiff,  upon  the  ground  of  preventing  a  multiplicity  of  suits, 
where  such  plaintiff  would  not  otherwise  have  had  any 
recognized  claim  for  equitable  relief  or  any  legal  cause  of 
action!  Or  is  it  essential  that  a  plaintiff  should  have  some 
existing  cause  of  action,  equitable  or  legal,  some  existing 
right  to  either  equitable  or  legal  relief,  in  order  that  a  court 
of  equity  may  interfere  and  exercise  on  his  behalf  its  juris- 
diction founded  upon  the  prevention  of  a  multiplicity  of 
suits?  The  proper  answer  to  these  questions  is  plainly 
involved  in  any  consistent  theory  of  the  doctrine ;  and  yet 
it  will  be  found  that  they  have,  either  expressly  or  im- 
pliedly, been  answered  in  a  contradictory  manner  by  dif- 
ferent courts,  and  hence  has  arisen  the  conflict  of  decision 
in  certain  important  applications  of  the  doctrine. 

§  250.a  I  will  briefly  examine  these  questions  upon  prin- 
ciple. In  the  first  place,  and  as  a  fundamental  proposi- 
tion, it  is  plain  that  prevention  of  a  multiplicity  of  suits 
is  not,  considered  by  itself  alone,  an  independent  source  or 
occasion  of  jurisdiction  in  such  a  sense  that  it  can  create 
a  cause  of  action  where  none  at  all  otherwise  existed.  In 
other  words,  a  court  of  equity  cannot  exercise  its  jurisdic- 
tion for  the  purpose  of  preventing  a  multiplicity  of  suits 
in  cases  where  the  plaintiff  invoking  such  jurisdiction  has 
not  any  prior  existing  cause  of  action,  either  equitable  or 
legal ;  has  not  any  prior  existing  right  to  some  relief,  either 
equitable  or  legal.^     The  very  object  of  preventing  a  multi- 

§  250,    (a)    Ttis    section    is    cited,  &  S.  I.  R.  Co.  v.  Barnes,  94  Miss.  48 1, 

generally,    in    M'Mullin's    Adm'r    v.  48  South.  823.     Cited  to  this  effe  t, 

Sanders,  79  Va.  356,  364.  Purdy  v.  Manhattan  El,   R.   R.   Co., 

§250,  (b)  Quoted,  Storrs  v.  Pensa-  13  N.  Y.  Supp.  295;  Allegany  &  K. 

cola  &  A.  R.  R.  Co.,  29  Fla.  617,  634,  R.   R.   Co.   v.   Weidenfeld,   25   N.  Y. 

11  South.  226,  231;  Roland  Park  Co.  Supp.   71,  76,   5   Misc.  Rep.  43;   also 

V.    Hull,    92    Md.    301,    48   Atl.    366;  in   Aimee  Realty  Co.  v.  Haller,   128 

Turner  v.   City  of  Mobile,   135   Ala.  Mo.   App.  66,   106   S.   W.  588;  Owen 

73,  33  South.  133,  141;  also,  in  Me-  v.  Alford,  232  Fed.  357,  146  C.  C.  A. 

chanics'    Ins.    Co.    v.    C.    A.    Hoover  405;  St.  Louis  Southwestern  Ry.  Co. 

Distilling  Co.,  173  Fed.  888,  32  L.  R.  v.    Woldert    Grocery   Co.    (Tex.    Civ. 

A.  (N.  S.)  940,  97  C.  C.  A.  400;  Gulf  App.),    162    S.    W.    1174.     See,    also, 


403 


TO    PREVENT   A   MULTIPLICITY    OF    SUITS. 


§250 


plicity  of  suits  assumes  that  there  are  relations  between 
the  parties  out  of  which  other  litigations  of  some  form 
might  arise.  But  this  prior  existing  cause  of  action,  this 
existing  right  to  some  relief,  of  the  plaintiff  need  not  be 


Jones    V.    Harris,    90    Ark.    51,    117 
S.  W.  1077. 

Thus,  where  an  injunction  was 
sought  against  repeated  trespasses, 
it  was  held  that  "if  such  trespasses 
separately  be  of  no  real  injury,  even 
an  infinite  repetition  of  the  trespass 
must  be  equally  harmless":  Purdy  v. 
Manhattan  El.  E.  R.  Co.,  13  N.  Y. 
Supp.  295.  Where  jurisdiction  is  in- 
voked by  the  complainant  to  restrain 
numerous  suits  brought  against  him, 
"its  exercise  necessarily  assumes  that 
the  complainant  .  .  .  has  some  de- 
fense, either  legal  or  equitable,  to 
the  numerous  suits  instituted  or 
threatened  against  him":  Storrs  v. 
Pensacola  &  A.  R.  R.  Co.,  29  Fla. 
617,  11  South.  226.  "If  a  party— 
to  give  an  illustration — be  brought 
to  the  bar  of  a  law  court  in  forty 
separate  actions  of  ejectment  for  as 
many  distinct  parcels  of  land,  by  the 
same  plaintiff,  upon  identical  facts 
in  each  case,  he  could  not  invoke  the 
jurisdiction  of  equity  to  a  preven- 
tion of  a  multiplicity  of  suits  if  he 
were  a  mere  naked  trespasser  and 
wrong-doer  in  respect  to  the  lands 
severally  sued  for;  had  no  title,  legal 
or  equitable,  no  right  to  the  posses- 
sion, no  defense  to  any  of  the  ac- 
tions. He  cannot  invoke  equity 
merely  to  have  his  wrong-doing  ad- 
judged in  one  suit  instead  of  forty." 
Turner  v.  City  of  Mobile,  135  Ala. 
73,  33  South.  133,  141.  See,  also, 
Town  of  Mount  Zion  v.  Gillman,  14 
Fed.  123.  So,  where  various  persons 
sued  a  railroad  company  for  dam- 
ages by  reason  of  the  overflow  of 
water    caused    by    its    embankment, 


the  company  could  not  enjoin  these 
suits  in  the  absence  of  a  showing 
that  the  embankment  was  lawful: 
Owen  V.  Alford,  232  Fed.  357,  146 
C.  C.  A.  405,  citing  this  paragraph  of 
the  text. 

The  principle  of  the  text  is  well 
illustrated  by  a  line  of  cases  in- 
volving separate  insurance  policies 
on  the  same  property.  Each  policy 
contains  a  clause  that  the  company 
shall  not  be  liable  for  a  greater  pro- 
portion of  any  loss  than  the  amount 
insured  by  such  policy  shall  bear  to 
the  whole  amount  of  valid  insurance 
on  the  property.  There  is  no  com- 
mon defense  to  the  actions  on  the 
policies  brought  by  the  insured. 
The  only  motive  for  invoking  equity 
jurisdiction  on  the  part  of  the  in- 
surers is  to  obtain  one  valuation 
which  shall  apply  to  all  the  poli- 
cies. There  is  no  analogy  between 
such  a  situation  and  that  presented 
by  a  bill  of  peace.  If  any  equity 
whatever  is  presented,  it  is  that  of 
apportioning  a  common  burden  (see 
post,  §  407) ;  but  as  no  one  insurer 
has  any  interest  in  what  any  other 
insurer  shall  pay  under  its  policy, 
that  ground  of  jurisdiction  also  fails. 
The  cases  should  be  carefully  dis- 
tinguished from  those  (post,  §  261, 
note,  I,  (a))  where  all  the  insurers 
had  a  common  defense:  Mechanics' 
Ins.  Co.  V.  C.  A.  Hoover  Distilling 
Co.,  173  Fed.  888,  32  L.  R.  A.  (N.  S.) 
940,  97  C.  C.  A.  400;  Home  Ins.  Co. 
V.  Jones,  175  Fed.  567,  99  C.  C.  A. 
189;  Rochester  German  Ins.  Co.  v, 
Schmidt,  175  Fed.  720,  99  C.  C.  A. 
296;  Scruggs  &  Echols  v.  American 


§  250  EQUITY    JURISPRUDENCE.  404 

equitable  in  its  nature.<=  Indeed,  in  the  great  majority  of 
cases  in  which  the  jurisdiction  has  been  exercised,  the  plain- 
tiff's existing  cause  of  action  and  remedial  right  were 
purely  legal ;  and  it  is  because  the  only  legal  remedy  which 
he  could  obtain  was  clearly  inadequate  to  meet  the  demands 
of  justice,  partly  from  its  own  inherent  imperfect  nature, 
and  partly  from  its  requiring  a  number  of  simultaneous  or 
successive  actions  at  law,  that  a  court  of  equity  is  competent 
to  assume  or  exercise  its  jurisdiction.  It  follows  as  a 
necessary  consequeuce^and  this  point  is  one  of  great  im- 
portance to  an  accurate  conception  of  the  whole  doctrine — 
that  the  existing  legal  relief  to  which  the  plaintiff  who 
invokes  the  aid  of  equity  is  already  entitled  need  not  be  of 
the  same  kind  as  that  tvhich  he  demands  and  obtains  from 
a  court  of  equity;  on  the  contrary,  it  may  be,  and  often  is, 
an  entirely  different  species  of  remedy.^  One  example  will 
sufficiently  illustrate  this  most  important  conclusion.  The 
facts  constituting  the  relations  of  the  parties  might  be  such 
that  the  only  existing  right  to  legal  relief  of  the  single 
plaintiff    against   the    wrong-doer   is    that    of   recovering. 

Central   Ins.    Co.,    176   Fed.   224,   36  407,  90  Pac.  228;  Gulf  &  S.  I.  E.  Co. 

L.   R.   A.    (N.   S.)    92,   100   C.   C.   A.  v.   Barnes,   94   Miss.   484,   48   South. 

142;  Scottish  Union  &  National  Ins.  823.     That  a  bill  of  peace  may  lie 

Co.  V.  Warren-Gee  Lumber  Co.,  103  to    restrain    equitable     actions,    see 

Miss.  816,  60  South.  1010;  Insurance  Allegany  &  K.  E.  E.  Co.  v.  W^iden- 

Co.  of  North  America  v.  CuUen,  237  feld,  25  N.  Y.  Supp.  71,  5  Misc.  Eep. 

Mo.  557,  141  S.  W.  626.  43. 

For  other  instances  of  attempted  §250,  (d)  Indeed,  it  may  be  re- 
consolidation  in  one  suit  in  equity  marked  that  the  cases  are  compar- 
of  actions  for  damages,  to  which  atively  rare  where  the  jurisdiction 
there  was  no  common  defense,  see  can  be  exercised  for  purely  peeu- 
post,  §  2511/^,  note  (h).  niary  relief,  or  the  recovery  of  spe- 

§250,  (c)  Quoted,  Storrs  v.  Pensa-  cific  property.    See  post,  §  251i/^,note 

cola  &  A.  E.  E.  Co.,  29  Fla.  617,  634.  (c).     The    remedy    most    frequently 

11  South.  226,  231;  Eoland  Park  Co.  obtained     is     injunction;     see     post, 

V.    Hull,   92    Md.    301.    48    Atl.    666.  §  261,  note  (b),  where  the  cases  are 

The  text  is  quoted,  also,  in  Mechan-  classified    according    to    the    remedy 

ics'   Ins.    Co.   V.    C.    A.    Hoover   Dis-  obtained.     The  above  passage  of  tho 

tilling  Co.,  173  Fed.  888,  32  L.  R.  A.  text  is   quoted   in   Christian   Feigen- 

(N.  S.)  940,  97  C.  C.  A.  400;  Creer  v.  span  v.  Nizolek,  72  N.  J.  Eq.  949,  65 

Bancroft  Land  &  Irr.  Co.,  13  Idaho.  Atl.  703. 


405  TO    PREVENT   A    MULTIPLICITY    OF    SUITS.  §  251 

amounts  of  damages  by  successive  actions  at  law;  or  the 
only  existing  right  to  legal  relief  of  each  one  of  numerous 
plaintiffs  having  some  common  bond  of  union  is  that  of 
recovering  damages  in  a  separate  action  at  law  against  the 
same  wrong-doer;  while  the  equitable  relief  which  might 
be  obtained  by  the  single  plaintiff  in  the  one  case,  or  by  all 
the  plaintiffs  united  in  the  other,  might  include  a  perpetual 
injunction,  and  the  rescission,  setting  aside,  and  abatement 
of  the  entire  matter  or  transaction  which  caused  the  injury, 
or  the  declaration  and  establishment  of  some  common  right 
or  duty  affecting  all  the  parties.  The  decisions  are  full 
of  examples  illustrating  this  most  important  feature  of 
the  doctrine.® 

§  251.a  The  remaining  questions  to  be  considered  are: 
What  multiplicity  of  suits  is  it  which  a  court  of  equity  will 
prevent?  What  party  must  be  harassed,  or  incommoded, 
or  threatened  with  numerous  litigations,  and  by  whom 
must  such  litigation  be  instituted,  in  order  that  a  court  of 
equity  may  take  jurisdiction  and  prevent  the  inconvenience 
and  wrong  by  deciding  all  the  matters  in  one  decreet 
These  questions  must  chiefly  belong  to  cases  of  the  third 
and  fourth  classes,  as  described  in  a  preceding  paragraph, 
where  the  "multiplicity"  to  be  prevented  arises  from  the 
fact  that  many  persons  claim  or  are  subject  to  some  general 

§250,  (e)  It  is  by  no  means  essen-  the  injury  to  such  plaintiff  person- 

tial  that  the  parties  with  whom  the  ally  may  be  nominal;  as  where  a  city 

plaintiff  seeks  to  avoid  litigation  are  sued  to  enjoin  breach  of  a  contract 

the  same  as  the  parties  to  the  bill;  made  with  a  gas  company  on  behalf 

thus,   it   is   frequently   a    ground    of  of  its  inhabitants.     Muncie  Nat.  Gas 

.I'urisdiction  that  the  plaintiff,   by  a  Co.  v.  City  of  Muncie,  160  Ind.  97,  66 

single   injunction   suit   against   state  N.  E.  436,  441. 

officials,  may  avoid  interminable  liti-  §251,   (a)   This  section  is  cited  in 

gation    with    members    of    the    com-  Macon  &  C.  R.  R.  Co.  v.  Gibson,  -So 

munity.     See    Smyth    v.    Ames,    169  Ga.  1,  21  Am.  St.  Rep.  135,  11  S.  E. 

U.  S.  466,  517,  518,  18  Sup.  Ct.  418;  442;  also  in  Buchanan  Co.  v.  Adkins, 

Haverhill    Gas-light    Co.    v.    Barker,  175  Fed.  692,  99  C.  C.  A.  246.     Sec- 

109  Fed.   694;   post,  §  274,  note    (d),  tions  251-274  are  cited  in  Rogers  v. 

and  references.     Conversely,  a  single  Boston  Club,  205  Mass.  261,  28  L.  B. 

plaintiff  may   sometimes   sue  in    be-  A.   (N.  S.)   743,  91  N.  E.  321. 
half   of  a   numerous   class,   although 


§  251  EQUITY    JURISPRUDENCE.  40C 

right,  althongh  their  individual  interests  are  separate  and 
distinct.  In  cases  belonging  to  the  first  and  second  classes, 
where  the  litigations  are  necessarily  between  a  single  plain- 
tiff and  a  single  defendant,  by  or  against  whom  all  the 
actions  must  be  brought,  there  could  not  generally  be  any 
room  or  opportunity  for  the  questions  above  stated.  It 
is  in  the  virtual  and  implicit,  though  not  often  express  and 
avowed,  answer  to  these  questions  that  most  of  the  conflict 
of  judicial  opinion  occurs.  It  has  been  laid  down  as  a 
general  proposition,  that  a  court  of  equity,  in  a  suit  by 
one  party  against  a  class  of  persons,  almost  always  neces- 
sarily indefinite  in  number,  claimed  to  rest  upon  the  juris- 
diction to  prevent  a  multiplicity  of  actions,  will  not  by  in- 
junction declare  and  establish  on  behalf  of  the  plaintiff  a 
right  which  is  in  its  nature  opposed  to  and  destructive  of 
a  public  right  claimed  and  enjoyed  by  the  defendants  in 
common  with  all  other  members  of  the  community  similarly 
situated;  as,  for  example,  an  exclusive  right  of  the  plain- 
tiff to  a  public  highway,  or  to  a  common  navigable  river, 
or  to  a  ferry  across  a  river.  A  reason  given  for  this  con- 
clusion is,  that  such  a  decree  would  virtually  require  the 
court  to  enjoin  all  the  inhabitants  of  the  state  or  country. ^ 
The  true  reasons,  however,  why  a  court  of  equity  refuses 
to  grant  such  relief  are  wholly  unconnected  with  the  doc- 
trine of  preventing  a  multiplicity  of  suits;  they  rest  en- 
tirely upon  considerations  of  public  policy  which  would 

§  251,  1  2  Story's  Eq.  Jur.,  §  858 ;  citing  Hilton  v.  Lord  Scarborough,  2 
Eq.  Cas.  Abr.  171,  pi.  2;  Mitford's  Eq.  PL,  Jeremy's  ed.,  148.  It  has 
also  been  decided  that  a  court  will  not  interfere  on  behalf  of  one  or  more 
individuals  when  their  injury  is  public  in  its  nature,  and  is  only  suffered 
by  each  one  of  them  in  common  with  all  other  citizens  or  members  of  the 
community  or  municipality,  because  such  individuals  have  no  cause  of 
action  whatever  which  any  court  of  equity  can  recognize;  their  remedy  is 
wholly  legislative  and  governmental.  The  observations  in  the  text  apply 
with  equal  force  to  this  class  of  cases.  See  Doolittle  v.  Supervisors,  18 
N.  Y.  155;  Roosevelt  v.  Draper,  23  N.  Y.  318;  Sargent  v.  Ohio  &  Miss. 
R.  R.,  1  Handy,  25,  60;  Carpenter  v.  Mann,  17  Wis.  160;  Kittle  v.  Fre- 
mont, 1  Neb.  329,  337;  Craft  v.  Comm'rs,  etc.,  5  Kan.  518. 


407  TO    PREVENT    A    MULTIPLICITY    OF    SUITS.  §  251 

hinder  a  court  of  equity  from  interfering  with  the  enjoy- 
ment of  rights  purely  public.  Again,  in  speaking  of  cases 
which  would  fall  either  in  the  third  or  fourth  class,  where 
the  total  controversy  is  between  a  single  determinate  party 
on  the  one  side,  and  a  number  of  persons,  more  or  less,  on 
the  other,  the  proposition  has  been  stated  in  the  most 
general  terms,  that  in  order  to  originate  this  jurisdiction — • 
namely,  a  bill  of  peace  by  one  plaintiff  against  numerous 
defendants — it  is  essential  that  there  be  a  single  claim  of 
right  in  all  (i.  e.,  of  the  defendants)  arising  out  of  some 
privity  or  relationship  with  the  plaintitf.  If  this  be  true, 
it  must  clearly  be  requisite  also  in  the  class  of  suits  brought 
by  or  on  behalf  of  numerous  plaintiffs  against  one  defend- 
ant.2  The  proposition  thus  quoted  from  a  text-writer  has 
been  maintained  b}^  some  judges ;  but  it  seems  to  be  quite 
irreconcilable,  at  all  events  in  its  broad  generality,  with 
numerous  well-considered  and  even  leading  decisions,  both 
English  and  American,  made  by  courts  of  the  highest 
ability,  if  any  ordinary  and  effective  meaning  is  given  to 
the  word  "privity."  Suits  have  often  been  sustained  by 
a  single  plaintiff  against  a  numerous  class  of  defendants, 
and  by  or  on  behalf  of  a  numerous  class  of  plaintiffs 
against  a  single  defendant,  avowedly  on  the  ground  of 
** preventing  a  multiplicity  of  suits,"  where  there  was  no 

§  251,  2  Adams's  Equity,  200,  6th  Am.  ed.,  408.  After  laying  down  the 
above  general  proposition,  the  author  adds,  by  way  of  illustration :  "A 
bill  of  peace,  therefore,  will  not  lie  against  independent  trespassers  having 
no  common  claim,  and  no  appearance  of  a  common  claim,  to  distinguish 
them  from  the  rest  of  the  community;  as,  for  example,  against  several 
booksellers  who  have  infringed  a  copyright,  or  against  several  persons  who, 
at  different  times,  have  obstructed  a  ferry.  For  if  a  bill  of  peace  could 
be  sustained  in  such  a  case,  the  injunction  would  be  against  all  the  people 
of  the  kingdom";  citing  Dilley  v.  Doig,  2  Ves.  486;  Mitford's  Eq.  PI.  147, 
148.  These  particular  cases  are  undoubtedly  correct  applications  of  the 
doctrine;  but  they  clearly  do  not  sustain  the  broad  proposition  of  this 
writer,  that  the  claim  of  right  between  the  single  party  on  the  one  side, 
and  the  class  of  persons  on  the  other,  must  arise  out  of  some  privity 
existing  between  all  the  members  of  that  class  as  individuals,  and  the  single 
party  on  the  other  side,  by  or  against  whom  the  right  is  asserted. 


§  251  EQUITY    JURISPRUDENCE.  408 

relation  existing  between  the  individual  members  of  the 
class  and  their  common  adversary  to  which  the  term 
** privity"  was  at  all  applicable.  Of  course  there  must  be 
some  common  relation,  some  common  interest,  or  some 
common  question,  or  else  the  decree  of  a  court  of  equity, 
and  the  relief  given  by  it  in  the  one  judicial  proceeding, 
could  not  by  any  possibility  avail  to  prevent  the  multipli- 
city of  suits  which  is  the  very  object  of  its  interference.^ 
Finally,  it  has  been  stated  in  a  very  positive  manner  in 
some  American  decisions,  as  an  essential  requisite  to  the 
existence  or  exercise  of  the  jurisdiction  to  prevent  a  multi- 
plicity of  suits,  that  the  plaintiff  who  invokes  the  jurisdic- 
tion of  equity  must  himself  be  the  party  who  would  be 
compelled  to  resort  to  numerous  actions  in  order  to  obtain 
complete  redress,  or  who  would  be  subjected  to  numerous 
actions  by  his  adversary  party,  unless  the  court  of  equity 
interferes  and  decides  the  whole  matter,  and  gives  final 
relief  by  one  decree.*^  As  I  have  already  remarked,  this 
proposition  may  be  accepted  as  actually  true  in  cases  be- 
longing to  the  first  and  to  the  second  classes,  where  the  con- 
troversy is  always  between  two  single  and  determinate  par- 
ties, and  the  sole  ground  for  a  court  of  equity  to  interfere 
on  behalf  of  either  is,  that  numerous  actions  at  law  are  or 
must  be  brought  by  one  against  the  other.  But  if  the  same 
rule  were  extended  as  an  essential  requisite  to  cases  be- 
longing to  the  third  and  fourth  classes, — and  it  is  in  such 
eases  that  it  has  sometimes  been  applied, — it  would  at  one 
blow  overturn  a  long  line  of  decisions,  both  English  and 
American,  which  have  always  been  regarded  as  authorita- 
tive and  leading.  On  principle,  therefore,  the  rule  last 
above  stated  cannot  be  regarded  as  a  universal  one,  con- 
trolling the  exercise  of  the  equitable  jurisdiction  *'to  pre- 
vent a  multiplicity  of  suits." 

§  251,  (b)  Quoted  in  Hale  v.  Allin-  §  251,  (c)  See  cases  collected,  post, 

son,   102  Fed.   790,    791;    Mengel   v.  §   267,    editor's    note.     The    text    is 

Lehigh  Coal  &  Nav.  Co.,  24  Pa.  Co.  quoted  in  Creer  v.  Bancroft  Land  & 

Ct.    Rep.    152.     See    the    new    para-  Irr.  Co.,  13  Idaho,  407,  90  Pac.  228. 
graph  following  (§  251^). 


409  TO    PREVENT    A    MULTIPLICITY    OF    SUITS.  §  251  ■'^ 

[2511/2.*     Jurisdiction  not  Exercised  When  That  Would 
be   Ineffectual;   Simplifying   of  the   Issues   Essential. — It 

seems  desirable  to  further  emphasize  and  illustrate  the 
author's  statement  that  in  cases  apparently  falling  within 
classes  third  and  fourth,  where  the  jurisdiction  depends  on 
the  multitude  of  plaintiffs  or  defendants,  "there  must  be 
some  common  relation,  some  common  interest,  or  some 
common  question"  in  order  that  the  one  proceeding  in 
equity  may  really  avail  to  prevent  a  multiplicity  of  suits. 
The  equity  suit  must  result  in  a  simplification  or  consoli- 
dation of  the  issues;  if,  after  the  numerous  parties  are 
joined,  there  still  remain  separate  issues  to  be  tried  be- 
tween each  of  them  and  the  single  defendant  or  plaintiff, 
nothing  has  been  gained  by  the  court  of  equity's  assuming 
jurisdiction.  In  such  a  case,  "while  the  bill  has  only  ono 
number  upon  the  docket  and  calls  itself  a  single  proceed- 
ing, it  is  in  reality  a  bundle  of  separate  suits,  each  of  which 
is  no  doubt  similar  in  character  to  the  others,  but  rests 
nevertheless  upon  the  separate  and  distinct  lial)ility  of  one 
defendant"^  in  cases  resembling  those  of  the  fourth  class, 

*The    following    new    paragraphs,  47;    Cumberland   Tel.    &   Tel.   Co.    v. 

§§  2511/2    and    251%,    may    well    be  Williamson,    101    Miss.    1,   57    South, 

postponed,  in  a  consecutive  reading  559;     Peniston    v.    Hydraulic    Press 

of  this  chapter,  until  §  265  is  reached.  Brick   Co.,   234   Mo.   698,   138    S.   W. 

They  are  inserted  in  this   place  be-  532;   Illinois  Steel  Co.  v.  Schroeder, 

cause  the  principle  of  §  25iy2  is  more  133  Wis.  561.  126  Am.  St.  Rep.  977, 

clearly  recognized  in  §  251  than  else-  14  L.  R.  A.   (N.  S.)   239,  113  N.  W. 

where  in  the  author's  text.  51.     The    very   recent   case    of    Hal<^ 

§  2511/2,  (a)  Tompkins  v.  Craig,  93  v.  Allinson,  ISS  U.  S.  56,  23  Sup.  Ct. 
Fed.  885,  2  Ames  Cas.  Eq.  Jur.  87,  244,  250-254,  affirming  106  Fed.  258 
by  McPherson,  D.  J.  The  text  is  (C.  C.  A.),  and  102  Fed.  790,  and  the 
quoted  in  Boonville  Nat.  Bank  of  opinions  therein  of  Mr.  Justice  Peck- 
Indiana  V.  Blakey,  166  Ind.  427,  76  ham  and  of  McPherson,  D.  J.,  pre- 
N.  E.  529;  International  Paper  Co.  sent  this  matter  in  the  clearest  light. 
V.  Bellows  Falls  Canal  Co.,  88  Vt.  93,  See  v(>st,  note  (f).  While  fully 
90  Atl.  943;  Southern  Steel  Co.  v.  recognizing  the  principle  of  jurisdic- 
Hopkins,  174  Ala.  465,  Ann.  Cas.  tion  contended  for  by  the  author, 
1914B,  692,  40  L.  R.  A.  (N.  S.)  464,  Mr.  .Justice  Peckham  observes:  "To 
57  South.  11;  and  cited  in  Watson  say  whether  a  particular  case  comes 
v.  Huntington,  215  Fed.  472,  131  within  the  principle  is  sometimes  a 
C.  C.  A.  520;  Vandalia  Coal  Co.  v.  much  more  difficult  task.  Each  case, 
Lawson,  43  Ind.  App.  226,  87  N.  E.  if   not   brought   directly   within   the 


2511/2 


EQUITY    JUEISPBUDENCB. 


410 


or  upon  the  separate  and  distinct  claim  of  one  plaintiff,  in 
cases  resembling  those  of  the  third  class.  In  refusing  to 
entertain  these  spurious  ''bills  of  peace,"  courts  of  equity 
impose  no  real  limitation  upon  their  jurisdiction,  which, 
by  its  very  definition,  exists  not  because  of  multiplicity  of 
suits,  but  to  avoid  them,  when  their  rules  of  procedure  can 
avail  to  that  purpose;  indeed,  they  merely  apply  to  bills 
of  this  character  the  ordinary  rules  of  equity  pleading 
relating  to  multifariousness.^ 


principle  of  some  preceding  case, 
must,  as  we  think,  be  decided  upon 
its  own  merits  and  upon  a  survey  of 
the  real  and  substantial  convenience 
of  all  parties,  the  adequacy  of  the 
legal  remedy,  the  situations  of  the 
different  parties,  the  points  to  be 
contested,  and  the  result  which  would 
follow  if  jurisdiction  should  be  as- 
sumed or  denied;  these  various  mat- 
ters being  factors  to  be  taken  into 
consideration  upon  the  question  of 
equitable  jurisdiction  on  this  ground, 
and  whether  within  reasonable  and 
fair  grounds  the  suit  is  calculated 
to  be  in  truth  one  which  will  prac- 
tically prevent  a  multiplicity  of  liti- 
gation, and  will  be  an  actual  con- 
venience to  all  parties,  and  will  not 
unreasonably  overlook  or  obstruct 
the  material  interests  of  any.  The 
single  fact  that  a  multiplicity  of 
suits  may  be  prevented  by  this  as- 
sumption of  jurisdiction  is  not  in 
all  cases  enough  to  sustain  it.  It 
might  be  that  the  exercise  of  equi- 
table jurisdiction  on  this  ground, 
while  preventing  a  formal  multipli- 
city of  suits,  would  nevertheless  be 
attended  with  more  and  deeper  in- 
convenience to  the  defendants  than 
would  be  compensated  for  by  the 
convenience  of  a  single  plaintiff; 
and  where  the  case  is  not  covered  by 
any  controlling  precedent  the  in- 
convenience   might    constitute    good 


ground  for  denying  jurisdiction.  .  .  . 
Is  there,  upon  the  complainant's 
theory  of  this  case,  any  such  com- 
mon interest  among  these  defend- 
ants as  to  the  questions  of  fact  tliat 
may  be  put  in  issue  between  them 
and  the  plaintiff?  Each  defendant's 
defense  may,  and  in  all  probability 
will,  depend  upon  totally  different 
facts,  upon  distinct  and  particular 
contracts,  made  at  different  times, 
and  in  establishing  a  defense,  even 
of  like  character,  different  witnesses 
would  probably  be  required  for  each 
defendant,  and  no  defendant  has 
any  interest  with  another."  In  Boon- 
ville  Nat.  Bank  v.  Blakey,  166  Ind. 
427,  76  N.  E.  529,  the  court,  quoting 
this  section  of  the  text,  says:  "To 
justify  the  interposition  of  a  court 
of  chancery  on  the  ground  that  a 
multiplicity  of  actions  at  law  will  be 
avoided,  the  court  ought  to  be  able 
to  perceive  from  the  issues  tendered 
and  the  other  averments  in  aid  of 
the  jurisdiction  that  the  bill,  if  en- 
tertained, will  not  be  multifarious, 
that  the  questions  involved  are  of 
such  a  nature  that  a  multiplicity  of 
actions  will  in  fact  be  avoided,  and 
that  the  avoidance  of  such  actions 
will   promote  justice." 

§2511/2,  (b)  Lehigh  Valley  E.  R. 
Co.  V.  McFarlan,  31  N.  J.  Eq.  730, 
759,  1  Keener's  Cas.  Eq.  Jur.  133. 
"In   this   respect   there  is   no   differ- 


411 


TO    PREVENT   A   MULTIPLICITY    OF    SUITS.  §  2511/^ 


The  following  cases  may  serve  to  illustrate  under  what 
circumstances  the  court  will  decline  to  exercise  its  juris- 
diction because  it  would  prove  ineffective  to  avoid  a  mul- 
tiplicity of  suits.  (1)  Cases  where  the  plaintiff's  were 
numerous  and  sought  to  join.  The  plaintiffs,  twelve  in 
number,  had  by  one  contract  assigned  to  the  defendants 
their  interests  in  an  option  for  the  purchase  of  a  mine,  in 
consideration  of  the  defendants'  promise  to  refund  to  each 
the  amount  previously  advanced  by  him  for  the  purposa 
of  developing  the  mine.  The  plaintiffs  joined  in  one  suit 
to  recover  these  separate  amounts.  Obviously,  the  case 
was  not  one  of  equitable  cognizance,  since  the  issues  be- 
tween each  plaintiff  and  the  defendants  were,  though  simi- 
lar, entirely  distinct  and,  save  as  they  grew  out  of  the  same 
transaction,  unconnected.^     Several  complainants,  owners 


ence  between  such  bills  [i.  e.,  those 
in  causes  of  purely  equitable  cogni- 
zance'] and  bills  of  peace.  A  bill  of 
peace  which  shall  draw  within  equi- 
table cognizance  causes  of  action 
which  are  purely  legal  in  their  char- 
acter, must  conform  to  the  rules  and 
principles  of  ordinary  equity  plead- 
ing. ...  In  such  cases  there  must 
be  such  a  unity  of  interest  on  the 
one  side  or  the  other,  as  would  jus- 
tify a  joinder  of  the  parties  in 
causes  of  purely  equitable  cogni- 
zance." 

The  very  common  misconception 
of  the  objects  that  may  be  attained 
by  a  "bill  of  peace,"  to  the  correc- 
tion of  which  the  present  §  2511/4 
is  addressed,  appears  to  be  nearly 
as  ancient  as  the  jurisdiction  itself; 
as  witness  the  amusing  instance  re- 
corded in  2  Ames  Cas.  Eq.  Jur,, 
p.  88,  note.  "In  a  note  to  Best  v. 
Drake,  11  Hare,  371,  the  reporter 
reproduces  the  following  extraor- 
dinary bill  of  peace,  in  the  time  of 
Lord  Nottingham,  given  in  the  Diary 
of     Narcissus    Luttrell:     'A    bill    in 


Chancery  was  this  term  preferred  by 
a  widow  against  500  persons,  to  an- 
swear  what  moneys  they  ow'd  her 
husband;  the  bill  was  above  3000 
sheets  of  paper,  to  the  wonder  of 
most  people;  but  the  Lord  Chan- 
cellor looking  on  it  as  vexatious,  for 
it  would  cost  each  Defendant  a  1001. 
the  copyeing  out,  he  dismissed  the 
bill,  and  ordered  Mr.  Newman,  the 
councellour,  whose  hand  was  to  it, 
to  pay  the  Defendants  the  charges 
they  have  been  att.' " 

§2511/2,  (c)  Van  Auken  v.  Dam- 
meier,  27  Or.  150,  40  Pac.  89.  Bean, 
C.  J.,  recognizing  the  principles  laid 
down  in  the  present  chapter,  says,  in 
part:  "The  rights  of  the  plaintiffs, 
as  against  the  defendants,  are  purely 
legal,  and  wholly  separate  and  dis- 
tinct. There  is  no  community  of 
interest  among  them  either  in  the 
subject-matter  of  the  suit,  or  in  the 
relief  sought.  .  .  .  Where  the  rights 
of  the  several  plaintiffs  are  purely 
legal,  and  in  themselves  perfectly 
distinct,  so  that  each  party's  case 
depends   upon   its  own  peculiar  cir- 


§  2511/2 


EQUITY   JURISPRUDENCE. 


412 


of  property  of  the  same  character,  which  they  asserted  to 
be  not  subject  to  assessment  for  taxes,  joined  in  a  suit  to 
enjoin  the  collection  of  taxes  levied  thereon,  claiming  as 
the  ground  of  jurisdiction  the  avoidance  of  a  multiplicity 
of  suits.  There  was  no  complaint  that  the  tax  as  a  whole 
was  not  legal,  and  the  complainants  did  not  sue  as  repre- 
sentatives of  all  the  property-owners  of  the  community.** 
**A,  upon  being  sued  in  ejectment  for  a  parcel  of  land  to 


cumstances,  and  the  relief  demanded 
is  a  separate  money  judgment  in 
favor  of  each  plaintiff  and  against 
the  defendant,  there  is  no  'practical 
necessity'  for  the  interposition  of  a 
court  of  equity,  and  we  can  find  no 
authority  for  holding  that  it  will 
assume  jurisdiction  simply  because 
the  parties  are  numerous."  Indeed, 
cases  of  classes  third  and  fourth 
where  the  jurisdiction  can  be  suc- 
cessfully invoked  for  purely  pecuni- 
ary relief,  while  not  unknown  (see 
post,  §  261,  note  (b)  "Class  Third," 
(I)  (f);  "Class  Fourth,"  (I)  (h)), 
are  necessarily  rare.  It  has  even 
been  held  that  plaintiffs  who  may 
join  to  restrain  a  nuisance  common 
to  them  all  cannot  in  the  same  suit 
recover  damages  for  their  respec- 
tive injuries.  Barham  v.  Hostet- 
ter,  67  Cal.  272,  7  Pac.  689;  Fore- 
man V.  Boyle,  88  Cal.  290,  26  Pac. 
94;  Geurkink  v.  Pctaluma,  112  Cal. 
306,  44  Pac.  570;  Younkin  v.  Mil- 
waukee Co.,  112  Wis.  15,  87  N.  W. 
861;  Nahte  v.  Hansen,  106  Minn. 
365,  119  N.  W.  55;  Norton  v.  Colusa 
P.  M.  &  S.  Co.,  167  Fed.  202.  (Query, 
why  is  this  not  an  instance  for  the 
application  of  the  familiar  principle 
that  in  case  of  injunction  against  a 
private  nuisance  the  cause  may  be 
retained  for  the  purpose  of  award- 
ing damages?  See  ante,  %  237.  The 
rule  against  multifariousness  surely 
does  not  require  that  all  the  parties 


should  be  interested  in  all  the  mat- 
ters set  forth  in  the  bill.  In  State 
V.  Sunapee  Dam  Co.  (N.  H.),  55  Atl. 
899,  a  case  of  this  character,  the 
court  was  evenly  divided  on  the 
question  of  jurisdiction  to  award 
damages  to  the  numerous  plaintiffs 
in  lieu  of  injunction,  but  the  juris- 
diction to  award  them  in  addition 
to  equitable  relief  appears  to  have 
been  unquestioned). 

Further  instances  of  attempted 
joinder  of  causes  of  action  for  pe- 
cuniary relief:  Parties  complaining 
of  breaches  of  separate  guaranties 
on  separate  sales  of  fertilizers  by 
defendant,  at  different  times,  and 
claiming  varying  amounts  of  dam- 
ages, joined  in  a  bill  to  avoid  mul- 
tiplicity of  suits;  the  bill  was  dis- 
missed: Newton  Oil  &  Mfg.  Co.  v. 
Sessum,  102  Miss.  181,  59  South.  9. 
Numerous  creditors  cannot  join  as 
plaintiffs  in  a  suit  in  equity  against 
stockholders  on  their  statutory  lia- 
bility to  recover  on  their  several 
claims;  each  claim  stands  on  its  own 
merits  and  against  each  of  them  the 
defendants  are  entitled  to  make  a 
separate  defense:  Miller  v.  Willett, 
71  N.  J.  Eq.  741,  65  Atl.  981,  affirm- 
ing 70  N.  J.  Eq.  396,  62  Atl.  178. 

§251V2,  (d)  Schulenberg-Boeckeler 
Lumber  Co.  v.  Town  of  Hayward,  20 
Fed.  422,  424.  "Each  complainant 
must  make  his  own  ease  upon  the 
facts.     One   might   succeed  and   an- 


413 


TO    PEEVENT   A   MULTIPLICITY    OF    SUITS. 


§  2511/2 


which  he  claims  to  have  the  legal  title,  or  which  he  claims 
the  legal  right  to  hold  against  the  plaintiff,"  cannot  "main- 
tain a  bill  to  enjoin  the  action  at  law,  and  have  his  legal 
title  or  defense  adjudged  and  his  possession  conserved 
thereunder,  solely  upon  the  ground  that  B,  C,  D,  E,  and  F, 
are  also  being  sued  by  the  same  plaintiff  for  other  and  dis- 
tinct parcels  of  land  which  the  plaintiff  claims  under  the 
same  chain  of  title  that  he  relies  on  against  A. "  « 


ether  fail.  I  know  of  no  case,  and 
hare  been  referred  to  none,  in  which 
persons  so  severally  interested  have 
been  permitted  to  join  in  either  a 
legal  or  equitable  suit,  and  to  allow 
it  would  be  to  confound  the  estab- 
lished order  of  judicial  proceeding, 
and  lead  to  interminable  confusion 
and  embarrassment." 

Plaintiifs  jointly  complaining  of  a 
void  ordinance  must  be  affected  in 
the  same  way.  The  ordinance  in 
question  contained  many  detailed 
provisions  concerning  the  licensing 
of  the  sale  of  "soft  drinks."  The 
different  plaintiffs  were  affected  by 
various  parts  of  the  ordinance. 
There  was  no  community  of  interest 
in  the  questions  involved:  Kearney 
V.  City  of  Canton,  273  111.  507,  113 
N.  E.  98. 

§  2511/2,  (e)  Turner  v.  City  of  Mo- 
bile, 135  Ala.  73,  33  South.  133,  141- 
143.  McClellan,  C.  J.,  carefully 
analyzes  the  author's  definition  of 
the  "third  class"  in  §  245,  and  his 
groups  of  cases  illustrating  that 
class  in  §  273,  and  shows  that  the 
case  in  hand  falls  neither  within  any 
of  these  groups  nor  within  the  prin- 
ciple underlying  them.  "The  com- 
munity idea,  so  to  speak,  in  each  of 
tliem,  lies  in  two  facts,  which  are 
absent  in  the  case  before  us.  In  the 
first  place,  the  wrong  done  to  the 
'numerous  persons'  of  the  text  is 
one     and     the    same    wrong    against 


them  all,  affecting  each  precisely 
alike.  Here,  assuming  that  the  in- 
stitution of  an  action  of  ejectment 
to  which  a  defense  is  developed  is  a 
wrong,  and  that  it  is  a  wrong  to 
bring  thirty  or  more  such  actions, 
there  can  be  no  pretense  that  the 
institution  of  thirty  or  more  sepa- 
rate suits  against  thirty  or  more 
separate  parties  for  thirty  or  more 
distinct  lots  of  land  is  one  wrong, 
or  that  the  institution  of  the  one 
suit  sought  here  to  be  enjoined  was 
a  wrong  against  and  common  to 
each  and  all  the  defendants,  in  the 
twenty-nine  or  more  separate  and 
distinct  actions.  In  the  next  place, 
in  each  of  the  cases  put  in  the  last 
four  clauses  of  the  section  [§  273, 
post],  a  decree  in  favor  of  one  or 
more  of  the  parties  against  all  [of] 
whom  the  one  wrong  was  committed 
and  all  [of]  whom  it  injures  in  the 
same  way  would  necessarily  and  di- 
rectly inure  to  the  benefit  of  all  said 
persons.  Thus,  a  decree  at  the  suit 
of  A  canceling  a  conveyance  as  a 
fraud  on  creditors  as  effectually  re- 
moves and  destroys  the  conveyance 
as  an  impediment  in  the  way  of  cred- 
itors B,  C,  and  D  as  if  they  had  been 
parties  complainant  with  A  in  the 
bill.  ...  Of  course,  in  such  cases 
all  may  join  in  a  bill,  or  one  may 
exhibit  it  on  behalf  of  himself  and 
the  others  or  on  his  own  behalf 
alone,  for  that  in  either  case  the  re- 


EQUITY    JURISPRUDENCE. 


414 


§  25iy2 

(2)  Cases  ivliere  the  plaintiff  sought  to  join  numerous 
defendants.  A  bill  was  filed  to  collect  the  amounts  pre- 
viously assessed  against  the  stockholders  of  a  corporation 


suit  to  them  all  is  the  same — relief 
to  all  of  them  from  the  consequences 
of  the  wrong  that  was  done  to  all  of 
them.  But  not  so  in  the  case  here. 
To  enjoin  the  city  of  Mobile  to  pros- 
ecute its  action  against  A  would  not 
be  to  enjoin  it  to  prosecute  its  other 
and  distinct  several  actions  against 
twenty-nine  or  more  other  persons 
who  are  not  parties  to  the  suit,  and 
might  never  be,  even  if  the  suit  is 
allowed  to  continue,  and  in  whose 
favor  no  relief  whatever  has  been 
or  could  be  prayed  by  A.  ...  A  de- 
cree for  these  complainants  would 
not  bind  either  the  plaintiff  or  the 
defendant  in  any  of  the  other  suits. 
It  would  not  put  an  end  to  any  one 
of  them,  nor  prevent  the  city  of 
Mobile  instituting  any  number  of 
other  like  suits,  and  having  a  sepa- 
rate trial  in  each.  The  decree,  in 
short,  would  not  prevent  the  rmdti- 
plicity  of  suits  alleged  to  be  pending 
or  imminent."  McClellan,  C.  J.,  dis- 
tinguished the  often  cited  decision 
of  Mr.  Justice  Harlan,  in  Osborne  v. 
Railroad  Co.,  43  Fed.  824  (for  which 
see  post,  at  beginning  of  editor's 
note  to  §  261),  a  very  similar  case, 
on  the  grounds  that  there  "all  the 
ejectment  defendants  in  whose  be- 
half relief  was  sought  were  actual 
complainants  in  the  bill,"  and  "the 
legal  title  of  each  of  the  complain- 
ants had,  in  effect,  been  adjudged 
and  settled  at  law."  (The  latter 
statement,  however,  appears  to  have 
been  true  of  only  a  portion  of  the 
complainants  in  the  Osborne  case.) 
The  decision  of  this  able  court  is 
plainly  correct,  and  not  at  variance 
with    any    proposition    advanced    by 


the  author.  When  the  jurisdiction, 
is  invoked  because  of  separate 
wrongs,  each  involving  the  samS 
question  of  law  and  fact,  it  is  plain 
that  the  individuals  severally  af- 
fected must  usually  be  made  parties 
to  the  bill,  in  order  that  the  relief 
awarded  may  be  effectual  to  prevent 
a  multiplicity  of  suits.  The  court 
appears  to  have  gone  too  far,  how- 
ever, if  it  attempts  to  assert,  as  a 
test  of  the  jurisdiction  in  "class 
third,"  the  existence  of  a  single 
wrong,  having  a  common  effect  upon 
the  numerous  persons,  and  capable 
of  being  remedied,  as  to  its  effect 
upon  them  all,  by  the  surTof  a  sin- 
gle plaintiff  in  his  own  behalf  alone. 
While  in  cases  where  the  wrongs  are 
separate,  though  similar,  there  is 
great  danger  that  the  joint  suit  of 
the  persons  severally  injured  may 
fall  within  the  condemnation  of  the 
principle  explained  in  this  section, 
viz.,  that  the  issues  as  to  each  plain- 
tiff will  remain  as  separate  in  the  / 
single  equity  suit  as  in  the  numerous 
legal  actions — yet  the  instances  are 
numerous  where  such  suits  have  been 
successful;  see  post,  §  261,  first  part 
of  editor's  note,  for  illustrations; 
also  §  269,  and  note  1. 

In  Sullivan  Timber  Co.  v.  City  of 
Mobile,  110  Fed.  186,  which  was 
apparently  a  part  of  the  same  liti- 
gation, the  court  likewise  refused  to 
sustain  jurisdiction  because  it  did 
not  appear  that  the  issues  between 
the  defendant  and  each  of  the  plain- 
tiffs depended  upon  the  same  ques- 
tions of  law  or  fact. 

Suit  to  enjoin  distinct  causes  of 
action  for  damages  against  complain- 


415 


TO   PBEVENT  A  MULTIPLICITY   OP   SUITS. 


§  251 V2 


under  a  statute  niaking  them  severally  and  individually 
liable  for  its  debts  to  an  amount  equal  to  the  value  of  their 
respective  shares.  While  an  inquiry  to  determine  how 
large  the  assessment  should  be  should  properly  be  made 


ants  arising  from  a  single  contract: 
Crawford  v.  Bosworth,  72  W.  Va. 
543,  78  S.  E.  623. 

See,  also,  the  following  cases, 
where  each  of  the  complainants 
might  have  been  entitled  to  equi- 
table relief,  but  their  joinder  was 
held  improper.  Purchasers  of  dis- 
tinct parcels  of  land,  by  separate 
contracts,  made  at  different  times, 
cannot  join  in  a  suit  against  their 
common  vendor  to  compel  convey- 
ance (Winslow  v.  Jenness,  64  Mich. 
84,  30  N.  W.  905)  or  reformation 
(Hendriekson  v.  Wallace,  31  N.  J. 
Eq.  604).  Neither  plaintiff  has  the 
slightest  interest  in,  or  connection 
with,  the  contract  of  the  other. 
"The  only  respect  in  which  it  can  be 
said  that  they  have  the  same  interest 
is,  that  their  positions  are  similar. 
They  each  happen  to  have  a  right 
of  action  against  the  same  person, 
for  causes  almost  identical  in  their 
facts." 

Attempted  joinder  of  separate 
suits  for  specific  performance. 
Fourteen  separate  owners  of  land, 
each  having  a  separate  written  con- 
tract with  a  water  company  to  fur- 
nish each  all  the  water  necessary  to 
irrigate  his  land,  cannot  join  as 
plaintiffs,  as  the  question  in  each 
suit  is  the  amount  of  water  which 
the  defendant  is  required  to  deliver 
to  each  plaintiff:  Creer  v.  Bancroft 
Land  &  Irr.  Co.,  13  Idaho,  407,  90 
Pac.  228.  In  Eipinsky  v.  Hinchman, 
181  Fed.  786,  105  C.  C.  A.  462,  plain- 
tiffs claiming  parcels  of  land  each 
under  a  different  chain  of  title 
joined  in  a  suit  to  remove  the  cloud 


of  defendant's  claim  to  ownership 
under  a  homestead  survey;  held,  a 
misjoinder.  In  Demarest  v.  Hard- 
man,  34  N.  J.  Eq.  472,  it  was  held 
that  several  persons  owning  distinct 
parcels  of  land,  or  occupying  differ- 
ent dwellings,  and  having  no  com- 
mon interest,  cannot  join  in  an  action 
to  restrain  a  nuisance  caused  by  the 
vibration  of  machinery  in  defend- 
ant's building,  in  consequence  of  the 
special  injury  to  the  particular  prop- 
erty of  each.  The  case  seems  a 
somewhat  extreme  application  of  the 
rule.  For  an  admirable  illustration, 
see  Marselis  v.  Morris  Canal  Co., 
1  N.  J.  Eq.  31,  post,  note  to  §  264, 
and  the  author's  explanations  and 
comments  (distinct  but  similar  tres- 
passes by  the  same  defendant). 

The  question  may  also  arise, 
whether  a  single  plaintiff  suing  in 
behalf  of  a  class  so  represents  the 
class  that  he  may  pray  for  relief  in 
behalf  of  all  persons  that  constitute 
it.  Thus,  in  a  case  where  an  im- 
porter of  liquors  sued  to  enjoin  their 
seizure  by  state  officials  under  color 
of  an  unconstitutional  statute,  it  was 
held  that  he  could  not  obtain  relief 
in  behalf  of  all  other  citizens  of  the 
state  who  were  importers  of  liquors. 
"It  is,  indeed,  possible  that  there 
may  be  others  in  like  case  with  the 
plaintiff,  and  that  such  persons  may 
be  numerous,  but  such  a  state  of 
facts  is  too  conjectural  to  furnish  a 
safe  basis  upon  which  a  court  of 
equity  ought  to  grant  an  injunction." 
Scott  V.  Donald,  165  U.  S.  107,  17 
Sup.  Ct.  262.  Compare  §  256,  note 
(e),  post. 


§  2511/2 


EQUITY    JURISPBUDENCB. 


416 


in  equity,  "after  the  rate  of  assessment  has  been  fixed,  and 
the  individual  liability  of  each  stockholder  has  thus  been 
ascertained,  the  enforcement  of  such  liability  is  the  proper 
subject  of  a  suit  at  law,  in  which  the  separate  rights  of  the 
defendant  stockholders  are  distinctively  to  be  considered."* 


§251V2,  (f)  Tompkins  v.  Craig,  93 
Fed.  885,  2  Ames  Cas.  Eq.  Jur.  87, 
by  McPherson,  D.  J.  "The  liability 
is  legal,  and  not  equitable.  It  is 
based  upon  the  stockholder's  con- 
tract of  subscription,  an  implied 
term  of  that  contract  being  the  dec- 
laration of  the  statute  that  a  certain 
contingent  liability  should  follow  the 
subscription.  Each  contract  is  a 
separate  obligation,  and  should  be 
separately  enforced.  It  is  plain, 
also,  that  each  defendant  may  desire 
to  set  up  a  different  defense.  One 
stockholder  may  have  paid  his  as- 
sessment in  whole  or  in  part;  an- 
other may  seek  to  raise  the  question 
whether  the  Iowa  court  had  juris- 
diction to  make  the  levy;  a  third 
may  wish  to  attack  the  amount  of 
the  assessment;  another  may  aver 
that  his  subscription  was  void  from 
the  beginning;  and  still  other  de- 
fenses, which  need  not  be  specified, 
are  readily  conceivable.  We  say 
nothing  about  the  validity  of  these 
defenses.  Some  of  them  may  not 
be  available,  and  others  may  not  be 
successful,  but  each  defendant  has 
the  right  to  make  whatever  objec- 
tion he  may  see  fit  to  raise,  in  order 
that  it  may  be  passed  upon  by  the 
court.  If  the  defendants  are  numer- 
ous, as  they  are  in  the  pending  suit, 
it  would  be  almost,  perhaps  wholly, 
impossible  to  apportion  fairly  the 
costs  of  hearing  and  of  determining 
many  unrelated  issues."  See,  also, 
the  opinion  of  the  same  judge  in  the 
similar  case  of  Hale  v.  Allinson,  102 
Fed.      790;      affirmed      and      opinion 


adopted,  106  Fed.  258  (C.  C.  A.). 
Quoting  the  text,  §§  251,  269,  and 
274,  he  says  in  part:  "The  receiver's 
cause  of  action  against  each  defend- 
ant is,  no  doubt,  similar  to  his  cause 
of  action  against  every  other,  but 
this  is  only  part  of  the  matter.  The 
real  issue,  the  actual  dispute,  can 
only  be  known  after  each  defendant 
has  set  up  his  defense,  and  defenses 
may  vary  so  widely  that  no  two 
controversies  may  be  exactly  or  even 
nearly  alike.  If,  as  is  sure  to  hap- 
pen, differing  defenses  are  put  in  by 
different  defendants,  the  bill  evi- 
dently becomes  a  single  proceeding 
only  in  name.  In  reality  it  is  a  con- 
geries of  suits  with  little  relation 
to  each  other,  except  that  there  is  a 
common  plaintiff,  who  has  similar 
claims  against  many  persons."  The 
decision  in  Hale  v,  Allinson  was 
affirmed  by  the  Supreme  Court  (Hale 
V.  Allinson,  188  U.  S.  56,  23  Sup.  Ct. 
244),  and  the  language  of  McPher- 
son, D.  J.,  adopted  by  the  court  as 
expressing  its  own  views.  For  a 
portion  of  the  opinion  of  Peckham, 
J.,  see  ante,  note  (a).  See,  further, 
Adams  v.  Coon,  109  U.  S.  380,  3 
Sup.  Ct.  263;  O'Brien  v.  Fitzgerald, 
143  N.  Y.  377,  38  N.  K  371;  Marsh 
v.  Kaye,  168  N.  Y.  196,  61  N.  E. 
177,  2  Ames  Cas.  Eq.  .Jur.  89.  Com- 
pare Bailey  v.  Tillinghast,  99  Fed. 
801,  806,  807  (C.  C.  A.),  post,  note 
to  §  261,  Fourth  Class,  (I),  (h), 
where  a  common  question  existed  be- 
tween the  receiver  and  each  share- 
holder; also.  Brown  v.  Allebach,  156 
Fed.    697.     In   New   York   Life   Ins. 


417 


TO    PEEVE  NT    A    MULTIPLICITY    OF    SUITS. 


§  2511/2 


A  bill  was  brought  to  cancel  numerous  notes  held  by  several 
defendants,  all  purporting  to  have  been  made  by  the  com- 
plainant, and  claimed  by  him  to  be  forgeries.  The  court, 
while  recognizing  the  jurisdiction  in  cases  of  the  "fourth 
class,"  says:  "It  is  not  enough  that  the  grounds  of  the 
invalidity  of  the  several  instruments  are,  as  in  this  case, 
similar.  So  far  as  the  instruments  sought  to  bo  can(M'l(*d 
here,  as  forged,  are  concerned,  the  forgeries  are  several. 
The  ground  of  the  invalidity  of  these  notes  is  not  a  common 
one  within  the  sense  of  the  cases  cited.  The  character  of 
one  of  these  notes,  as  to  its  being  forged,  has  no  bearing 
as  to  the  others.  The  questions  touching  the  validity  of 
these  notes  are  as  several  as  the  holdings.  There  is,  in 
other  words,  a  multiplicity  of  issues  of  facts  to  be  tried, 
which  the  jurisdiction  invoked  cannot  avoid  or  lessen,  "s 


Co.  V.  Beard,  80  Fed.  66,  the  statu- 
tory liability  of  numerous  stock- 
holders was  enforced  in  a  single  suit, 
although  there  appears  to  have  been 
no  such  common  question;  but  in  this 
case  equity  already  had  jurisdiction 
to  compel  payment  of  unpaid  sub- 
scriptions, and  properly  retained  ju- 
risdiction for  complete  relief  against 
each  defendant. 

Further  instances  of  pecuniary  re- 
lief against  numerous  defendants 
refused:  Bill  to  enforce  the  sepa- 
rate liabilities  of  members  of  an  in- 
solvent insurance  association,  there 
being  no  common  question;  Burke 
V.  Scheer,  89  Neb.  80,  33  L.  R.  A. 
(N.  S.)  1057,  130  N.  W.  962.  The 
supreme  court  of  Massachusetts,  in 
Rogers  v.  Boston  Club,  205  Mass.  261, 
28  L.  R.  A.  (K  S.)  743,  91  N.  E.  321. 
while  recognizing  as  settled  the  gen- 
eral principle  laid  down  by  the 
author  in  §  269,  post,  refused  to  en- 
tertain a  bill  by  the  receiver  of  a 
social  club  against  its  members  to 
recover  the  annual  dues  of  each; 
1—27 


though  there  was  a  question  in  which 
they  all  had  a  common  interest, — 
viz.,  whether  there  was  a  certain 
by-law  and  liability  of  members 
under  it, — there  were  other  questions 
which  pertained  to  each  individual 
defendant,  depending  on  the  date  of 
his  membership,  etc. 

§2511/2,  (g)  Scott  V.  McFarland, 
70  Fed.  280,  by  Bellinger,  D.  J. 

Bill  to  set  aside  separate  fraudu- 
lent preferences:  "In  the  nature  of 
things  the  questions  which  would 
be  common  to  all  of  the  defendants 
in  such  a  suit  as  this  would  be  likely 
to  be  the  subsidiary  questions,  while 
the  questions  as  to  whether  each  of 
the  appellants  had  reasonable  cause 
to  believe  that  a  preference  was  in- 
tended would  be  likely  to  be  the 
important  questions,  and  it  would 
also  be  probable  that  the  inquiries 
concerning  them  would  prove  widely 
divergent":  Boonville  Nat.  Bank  v. 
Blakey,  166  Ind.  427,  76  N.  E.  529, 
533. 


§  2511/2 


EQUITY    JURISPRUDENCE. 


418 


A  party  owning  and  maintaining  a  dam  across  a  river, 
under  a  claim  of  right  so  to  do,  cannot  maintain  an  action 
in  the  nature  of  a  bill  of  peace  against  two  groups  of  par- 
ties, who  have  brought  separate  actions  against  him  to 
recover  damages  for  alleged  torts  claimed  to  have  been 
done  to  them  by  reason  of  the  dam;  one  group  claiming 
to  be  injured  by  back-water  resulting  from  the  maintenance 
of  the  dam  at  an  unlawful  height;  the  other  claiming  to 
be  injured  by  the  diversion  of  the  water.  "The  causes 
from  which  the  injuries  to  the  parties  respectively  re- 
sulted, instead  of  being  coincident,  are  divergent."^     Per- 


§2511/2,  (h)  Lehigh  Valley  E.  R. 
Co.  V.  McFarlan,  30  N.  J.  Eq.  135, 
2  Ames  Gas.  Eq.  Jur,  85,  31  N.  J. 
Eq.  730,  754,  759-761,  1  Keener  Cas. 
Eq.  Jur.  133,  citing  and  commenting 
on  Sheffield  Water  Works  v.  Yeo- 
mans,  L.  R.  2  Ch.  App.  8;  New  York 
&  N.  H.  R.  R.  Co.  V.  Schuyler,  17 
N.  Y.  592;  Fellows  v.  Fellows,  4  Cow. 
682,  15  Am.  Dec.  412;  Bouverie  v. 
Prentice,  1  Bro.  C.  C.  200;  Dilly  v. 
Doig,  2  Ves.  486;  Rayner  v.  Julian, 
2  Dick.  677;  Whaley  v.  Dawson,  2 
Schoales  &  L.  367,  and  many  other 
cases.  See  quotation  from  the  opin- 
ion of  Depue,  J.,  ante,  note  (b).  "To 
justify  a  bill  of  peace,  therefore, 
there  must  be  in  dispute  a  general 
right  in  the  complainant,  in  which  the 
defendants  are  interested,  of  such  a 
character  that  its  existence  may  be 
finally  determined  in  a  single  issue. 
It  is  not  indispensable  that  the  de- 
fendants should  have  a  co-extensive 
common  interest  in  the  right  in  dis- 
pute, or  that  each  should  have  ac- 
quired his  interest  in  the  same  man- 
ner, or  at  the  same  time,  but  there 
must  be  a  general  right  in  the 
complainant,  in  which  the  defend- 
ants have  a  common  interest,  which 
may  be  established  against  all  who 
controvert  it,  by  a  single  issue." 


Further  instances  of  attempted 
injunction  of  separate  actions  at  law 
f6r  damages  against  the  single  com- 
plainant: Actions  for  damages  for 
alleged  nuisance  committed  by  com- 
plainant: Roanoke  Guano  Co.  v. 
Saunders,  173  Ala.  347,  35  L.  R.  A. 
(N.  S.)  491,  56  South.  198  (nuisance 
from  noxious  smoke;  complainant 
seeks  to  have  damages  of  the  sev- 
eral defendants  assessed  in  equity) ; 
Hamilton  v.  Alabama  Power  Co.,  195 
Ala.  438,  70  South.  737  (actions  for 
alleged  nuisances  resulting  from 
building  of  dam  might  involve  dif- 
ferent issues,  some  being  grounded 
on  negligence,  some  on  the  theory 
that  the  injuries  were  the  natural 
result  of  the  construction  of  the 
dam,  etc.) ;  Mayor  &  Common  Coun- 
cil of  Newark  v.  National  Silk  Dye- 
ing Co.,  83  N.  J.  Eq.  470,  91  Atl. 
877  (actions  for  damages  by  twelve 
mill  owners  for  wrongful  abstraction 
of  water).  Actions  for  damages  by 
twelve  different  persons  for  services 
rendered:  Central  Iron  &  Coal  Co. 
V.  Ballard,  177  Ala.  664,  59  South. 
47.  Actions  for  negligent  handling 
of  cotton,  replevin,  etc.;  Gulf  Com- 
press Co.  V.  Wooten  Cotton  Co.,  98 
Miss.  651,  54  South.  86.  Four  per- 
sons   brought    tort    actions    against 


419 


TO    PKEVENT   A   MULTIPLICITY    OF    SUITS. 


§  2511/2 


sons  whose  alleged  interests  in  lands  advertised  for  sale 
by  an  administrator  are  antagonistic,  and  who  file  separate 
and  independent  claims  thereto,  cannot  be  properly  joined 
as  co-defendants  to  an  equitable  petition  brought  by  the 
administrator,  praying  that  the  prosecution  of  the  claims 
be  enjoined,  and  that  the  conflicting  claims  of  title  be  ad- 
judicated and  settled  by  the  judgment  to  be  rendered  upon 
such  petition.^    A  bill  alleged  that  the  complainant's  agent. 


plaintiff  company  for  the  removal  of 
their  telephones  by  plaintiff.  Each 
claimed  to  be  a  subscriber  to  a  local 
telephone  which  the  plaintiff  had 
bought  out.  What  common  defense, 
if  any,  the  plaintiff  had,  does  not 
appear:  Cumberland  Tel.  &  Tel.  Co. 
V.  Williamson,  101  Miss.  1,  57  South. 
559.  Entirely  different  causes  of 
action  in  favor  of  various  parties 
concerned  in  a  collision  at  the  cross- 
ing of  two  railroads:  Gulf  &  S.  I.  R. 
Co.  V.  Barnes,  94  Miss.  484,  48  South. 
823  (instructive  opinion  by  Whit- 
field, C.  J.,  relying  on  §  250  of  the 
text).  Actions  for  damages  for  an 
alleged  nuisance  committed  by  com- 
plainant brought  by  persons  claim- 
ing to  have  been  injured  in  different 
ways,  sought  to  be  consolidated  and 
tried  as  one  suit  in  the  chancery 
court:  Gulf  &  Ship  Island  R.  Co.  v. 
Walker,  103  Miss.  836,  60  South. 
1014.  Actions  for  damages  by  nu- 
merous persons  injured  by  a  mine 
explosion  sought  to  be  consolidated: 
Vandalia  Coal  Co.  v.  Lawson,  43 
Ind.  App.  226,  87  N.  K  47.  In  the 
last  case  the  court  says:  "Should  the 
court  take  jurisdiction  of  this  case 
in  equity  and  the  issues  tried  out 
therein,  it  would  be  necessary  to 
submit  the  questions  of  fact — the 
amount  of  damages  done  the  several 
injured  persons,  etc. — to  a  jury. 
The  possibility  that  the  jury  might 
eonfuse    the    evidence  relating  to  so 


many  separate  parties  is  strong. 
Great  difficulty  might  arise  in  ad- 
justing the  rights  of  all  parties  in 
one  decree,  and  justice  would  be 
more  likely  obtained  by  separate 
trials."  Southern  Steel  Co.  v.  Hop- 
kins, 174  Ala.  465,  Ann.  Cas.  1914B, 
692,  40  L.  R.  A.  (N.  S.)  464,  57  South. 
11  (facts  similar  to  last  case:  See 
end  of  opinion). 

For  further  instances  of  attempted 
consolidation  in  one  suit  in  equity 
of  suits  for  damages  to  which  there 
was  no  common  defense,  see  ante, 
§  250,  note  (b). 

§2511/2,  (i)  Webb  v.  Parks,  110 
Ga.  639,  36  S.  E.  70.  Lumpkin,  P.  J., 
after  distinguishing  the  case  of 
Smith  v.  Dobbins,  87  Ga.  303,  13 
S.  E.  496,  which  well  illustrates  the 
author's  "fourth  class,"  continues,  in 
the  picturesque  language  character- 
istic of  his  court:  "When,  however,  a 
number  of  persons  are  at  variance 
among  themselves  as  to  their  alleged 
rights  with  respect  to  particular 
property,  each  claiming  antagonis- 
tically to  all  the  others,  and  there  is 
no  'community  of  interest  among 
them  in  the  questions  of  law  and 
fact  involved  in  the  general  contro- 
versy, or  in  the  kind  and  form  of 
relief  which  they,  respectively,  and 
each,  for  himself,  demand,'  equity 
will  not  compel  them  to  consolidate 
and  engage  in  a  pellmell  struggle. 
In  other  words,  if  we  may  borrow 


§2511/2 


EQUITY    JURISPEUDENCB. 


420 


without  authority,  made  sales  of  complainant's  crops,  and 
used  their  proceeds,  and  that  he  wrongfully  appropriated 
to  his  use  moneys  supplied  to  him  as  such  agent,  and  joined 
with  the  agent  as  defendants  the  persons  to  whom  he  had 
so  disposed  of  the  property,  alleging  its  conversion  by 
them,  and  that  to  sue  them  all  would  require  a  great  multi- 
plicity of  suits.  The  matters  relied  on  for  relief  against 
these  defendants,  therefore,  depended  on  unconnected  tor- 
tious acts.J 


a  warlike  illustration,  it  would  not 
be  just  or  fair  to  constrain  soldiers 
at  enmity  with  each  other  to  fight 
side  by  side  against  a  common  foe, 
nor  to  allow  the  latter  the  advantage 
of  having  the  attention  of  the  ad' 
versaries  diverted  from  attacks  they 
might  successfully  make  upon  him 
by  pressing  distractions  and  causes 
of  quarrel  among  themselves."  See, 
also,  to  the  same  effect,  Portwood  v. 
Huntress,  113  Ga.  815,  39  S.  E.  299. 
§251V2,  (j)  Jones  v.  Hardy,  127 
Ala.  221,  28  South.  564,  2  Ames  Gas. 
Eq.  Jur.  91.  "To  settle  several  con- 
troversies in  a  single  suit,  and  there- 
by prevent  a  multiplication  of  suits, 
equity  will  assume  jurisdiction  un- 
der a  variety  of  circumstances,  but 
it  will  never  interfere  to  forestall 
legal  remedies  when  the  causes  of 
suit  are  entirely  separate  and  dis- 
tinct from  each  other  and  depend 
for  their  adjustment  on  no  common 
or  connected  right,  relation  or  ne- 
cessity. When  the  jurisdiction  is 
invoked  by  a  single  complainant 
against  several  to  whom  his  interest 
is  separately  opposed,  he  must  show 
that  the  interests  of  the  defendants 
are  related  to  each  other  as  being 
connected  with,  or  convergent  in,  the 
property  right  or  question  involved 
in  the  suit.  Pom.  Eq.  Jur.,  §  274." 
See,  also,  the  somewhat  similar  case, 
Hamner  v.  Garrett  (Tex.  Civ.  App.), 


133  S.  W.  1058  (A,  owner  of  land, 
arranged  with  B  to  sell  it  in  lots 
at  not  less  than  specified  prices;  B 
effected  a  number  of  contracts  of 
sale  with  third  persons;  A  claimed 
that  B  did  not  carry  out  his  agree- 
ment and  brought  this  suit  to  re- 
strain suits  by  B  and  his  vendees 
to  compel  A  to  convey). 

For  further  illustrations,  see  Scott 
V.  Erie  R.  R.  Co.,  34  N.  J.  Eq.  354; 
Buffalo  Chemical  Works  v.  Bank  of 
Commerce,  79  Hun,  93,  29  N.  Y. 
Supp.  663;  National  Union  Bank  v. 
London  &  E.  P.  Bank,  37  N.  Y.  Supp. 
741,  2  App.  Div.  208;  Kirwan  v. 
Murphy,  189  U.  S.  35,  23  Sup.  Ct. 
599;  Ducktown  Sulphur,  Copper  & 
Iron  Co.  v.  Fain,  109  Tenn.  56,  70 
S.  W.  813.  See,  also,  these  recent 
cases:  United  States  v.  Bitter  Root 
Development  Co.,  200  U.  S.  451,  50 
L.  Ed.  550,  26  Sup.  Ct.  318  (trespass 
and  conversion  of  timber  by  many 
separate  defendants;  accounting 
sought);  St.  Louis,  Iron  Mountain  & 
Southern  Ry.  Co.  v.  McKnight,  244 
U.  S.  368,  61  L.  Ed.  1200,  37  Sup. 
Ct.  611  (an  injunction  suit  against 
the  enforcement  of  statutory  rates 
had  been  directed  by  the  supreme 
court  to  be  dismissed.  The  railroad 
company  then  sued  to  restrain  ac- 
tions by  shippers  and  passengers  in 
the  state  court  for  damages,  on  the 
theory  of  multiplicity  of  suits.     The 


421 


TO    PREVENT    A    MUJ.TIPLICITY    OF    SUITS. 


§  251% 


§  2513/4.  There  must  be  a  Practical  Necessity  for  the  Ex- 
ercise of  the  Jurisdiction.^ — Since  the  existence  or  exercise 
of  the  jurisdiction,  in  classes  third  and  fourth,  depends  on 
defects  in  the  legal  rules  as  to  joinder  of  parties,  where  the 
legal  remedy  is  not  thus  defective,  but  permits  the  joinder 
of  the  numerous  parties  or  consolidation  of  the  numerous 
suits,  equity  v^ill  not  take  jurisdiction  for  the  purpose  of 
awarding  substantially  the  same  relief  that  may  be  ob- 
tained at  law.^    Again,  it  has  been  held  that,  if  danger  of 


only  common  question — whether  the 
statutory  rates  promulgated  by  the 
railroad  commission  were  confisca- 
tory— had  been  settled  against  the 
complainant  in  the  first  suit.  The 
claim  of  each  defendant  in  the  pres- 
ent suit  presented  a  separable  con- 
troversy unconnected  with  any  of 
the  others.  There  was  no  common 
controverted  question  of  law) :  Bel- 
lamy V.  St.  Louis,  I.  M.  &  S.  Ey.  Co., 
(C.  C.  A.),  220  Fed.  876. 

Bills  to  quiet  title  against  numer- 
ous defendants  in  possession  of  par- 
cels of  a  large  tract  claimed  by 
plaintiff  have  frequently  fallen  with- 
in the  condemnation  of  the  principle 
of  the  text.  See  New  Jersey  &  N.  C. 
Land  &  Lumber  Co.  v.  Gardner  Lacy 
Lumber  Co.,  161  Fed.  768;  Sayers  v. 
Tallassee  Falls  Mfg.  Co.,  167  Ala. 
553,  52  South.  892;  Chaput  v.  Bock, 
224  Mo.  73,  123  S.  W.  16  (each  de- 
fendant sets  up  adverse  possession, 
presenting  a  separate  issue) ;  Penis- 
ton  v.  Hydraulic  Press  Brick  Co., 
234  Mo.  698,  138  S.  W.  532;  Illinois 
Steel  Co.  v.  Schroeder,  133  Wis.  561, 
126  Am.  St.  Rep.  977,  14  L.  R.  A. 
(N.  S.)  239,  113  N.  W.  51,  (relying 
on  tho  above  paragraph  of  the  text). 
In  the  last  case,  according  to  the 
allegations  of  the  complaint,  each 
defendant  claimed  title  by  adverse 
possession  only  by  tacking  his  pos- 
session  to  the   former  possession   of 


one  M.  If  complainant  succeeded 
in  disproving  the  possession  of  M^, 
therefore,  it  would  appear  that  the 
title  of  each  individual  defendant 
would  fall  with  it.  While  the  facts 
are  by  no  means  clear,  it  would  seem 
that  there  was  a  sufficient  singleness 
of  issue  to  warrant  the  court's  tak- 
ing jurisdiction  of  the  case.  As 
pointed  out  in  the  vigorous  dissent- 
ing opinion  of  Marshall,  J.,  the  prin- 
ciple of  the  text  does  not  require — 
as  the  court  appears  to  assume — • 
that  the  whole  case  against  each 
defendant  should  be  the  same. 
Doubt  is  cast  upon  the  decision  by 
the  opinion  in  Franke  v.  H.  P.  Nel- 
son Co.,  157  Wis.  241,  147  N.  W.  13, 
for  which  see  post,  note  to  §  261. 

§  251%,  (a)  This  paragraph  is 
cited  in  International  Paper  Co.  v. 
Bellows  Falls  Canal  Co.,  88  Vt.  93, 
90  Atl.  943;  Watson  v.  Huntington, 
215  Fed.  472,  131  C.  C.  A.  520; 
Southern  Steel  Co.  v.  Hopkins,  174 
Ala.  465,  Ann.  Cas.  1914B,  692,  40 
L.  B.  A.  (N.  S.)  464,  57  South.  11; 
Vandalia  Coal  Co.  v.  Lawson,  43  Ind. 
App.  226,  87  N.  E.  47;  Cumberland 
Tel.  &  Tel.  Co.  v.  Williamson,  101 
Miss.  1,  57  South.  559. 

§  251%,  (b)  As  where  adequate 
relief  may  be  obtained  by  joining 
the  numerous  defendants  or  plain- 
tiffs in  an  action  of  ejectment: 
Smythe  v.  New  Orleans  C.  &  B.  Co., 


§  25134 


EQUITY    JURISPBUDENCE. 


422 


vexatious  suits  by  the  same  party  or  numerous  parties  is 
the  ground  of  jurisdiction  alleged  by  the  single  complain- 
ant, he  must  show  more  than  a  mere  possibility  of  such 
litigation;  the  danger  to  which  he  is  exposed  must  be  a  real 
one.<5] 


34  Fed.  825;  Northern  Pac.  E.  R. 
Co.  V.  Amacker,  46  Fed.  233,  49  Fed. 
529,  1  C.  C.  A.  345,  7  U.  S.  App. 
33;  McGuire  v.  Pensacola  City  Co., 
105  Fed.  677,  44  C.  C.  A.  670;  City 
of  San  Francisco  v.  Beideman,  17 
Cal.  461;  Burroughs  v.  Cutter,  98 
Me.  178,  56  Atl.  649.  See,  also, 
Manchester  Fire  Assur.  Co.  v.  Stock- 
ton C.  H.  &  A.  Works,  38  Fed.  378; 
Myers  v.  Sierra  Val.  S.  &  A.  Assn., 
122  Cal.  669,  55  Pac.  689  (by  stat- 
ute, all  stockholders  may  be  joined 
in  suit  at  law  to  enforce  their  indi- 
vidual liability);  Imperial  Fire  Ins. 
Co.  V.  Gunning,  81  111.  236  (injunc- 
tion sought  against  numerous  gar- 
nishments; complainant  has  adequate 
remedy  by  consolidating  the  gar- 
nishment suits) ;  Mayor  etc.  of  City 
of  Gainsville  v.  Dean,  124  Ga.  750, 
53   S.  E.   183. 

§251%,  (c)  See  Town  of  Venice 
V.  Woodruff,  62  N.  Y.  462,  20  Am, 
Rep.  495,  as  explained  in  Town  of 
Springport  v.  Teutonia  Sav.  Bank, 
75  N.  Y.  397,  401  (the  numerous  in- 
struments sought  to  be  canceled  did 
not  create  eA'en  a  prima  facie  lia- 
bility); Farmington  Village  Corpo- 
ration V.  Sandy  R.  Nat.  Bank,  85 
Me.  46,  26  Atl.  965  (a  similar  case: 
"The  evil  complained  of  is  based 
more  upon  fear  than  reality.  No 
vexatious  litigation  by  any  of  these 
respondents  has  been  shown.  No 
evidence  has  been  adduced  of 
threats,  even,  of  vexatious  suits. 
The  mere  allegation  of  a  belief  that 
the  holders  intend  to  harass  the  com- 
plainant is  not  sufficient") ;  Fellows 


V.  Spaulding,  141  Mass.  92,  6  N.  E. 
548  (against  numerous  creditors  at- 
tempting to  prove  their  claims 
against  the  plaintiff  in  a  court  of 
insolvency:  "The  same  questions  of 
law  are  raised  in  each  case,  and 
there  is  no  reason  why  one  suit  in 
the  usual  course  of  proceedings  in 
insolvency,  the  others  being  con- 
tinued to  abide  the  result,  should 
not  settle  all  the  cases");  Andel  v. 
Starkel,  192  111.  206,  61  N.  E.  356 
(no  suits  threatened  save  the  one 
actually  brought);  Nash  v.  McCath- 
ern,  183  Mass.  345,  67  N.  E.  323  (all 
defendants  save  one  disclaim  any 
intention  of  suing  plaintiff) ;  Kellett 
v.  Ida  Clayton  &  G.  W.  W.  R.  Co., 
99  Cal.  210,  33  Pac.  885.  See,  also, 
Equitable  Guarantee  &  T.  Co.  v. 
Donahue  (Del.),  45  Atl.  583,  post, 
note  to  §  266.  It  has  been  held  that 
two  suits  against  the  plaintiff  do  not 
constitute  a  "multiplicity"  of  suits. 
Druon  v.  Sullivan,  6G  Vt.  609,  30 
Atl.  98.  In  Pacific  Exp.  Co.  v.  Sei- 
bert,  44  Fed.  310,  a  case  of  the 
"second  class,"  to  enjoin  the  collec- 
tion of  taxes,  the  court  said:  "It 
is  real  and  not  imaginary  suits,  it  is 
probable  and  not  possible  danger  of 
multiplicity  of  suits,  that  will  war- 
rant the  assumption  of  jurisdiction 
on  that  ground.  While  it  is  true,  as 
the  plaintiff  contends,  that  the  state 
might  bring  a  separate  suit  for  each 
day's  penalty,  the  court  would  hardly 
be  justified  in  acting  on  the  assump- 
tion that  it  would  do  so.  .  .  .  What- 
ever the  rule  may  be  in  the  case  of 
natural  persons,  the   court  will  pre- 


123 


TO   PREVENT    A    MULTIPLICITY    OF    SUITS. 


§252 


§  252.  Examination  of  the  Doctrine  upon  Authority — 
First  Class.a — I  shall  now  examine  the  nature,  extent,  and 
limitations  of  the  general  doctrine  upon  authority.  The 
cases  belonging  to  the  first  class  of  the  arrangement  made 
in  a  preceding  paragraph, i  where  a  court  of  equity  inter- 
feres because  the  plaintiff  would  be  obliged  to  bring  a  suc- 
cession, perhaps  an  indefinite  number,  of  actions  at  law  in 
order  to  obtain  relief  appearing  even  to  be  sufficient  have 
generally  been  cases  of  nuisance,  waste,  trespass  to  land, 
disputed  boundaries  involving  acts  of  trespass  by  the  de- 
fendant, and  the  like,  the  wrong  complained  of  being  in  its 
very  nature  continuous.  If  the  plaintiff's  title  to  the  sub- 
ject-matter affected  by  the  wrong  is  admitted,  a  court  of 
equity  will  exercise  its  jurisdiction  at  once,  and  will  grant 


§252,  ISee  ante,  ^245. 

sume  that  a  state  is  incapable  of 
such  a  vulgar  passion,  and,  until  the 
fact  is  shown  to  be  otherwise,  will 
act  on  the  assumption  that  a  state 
will  not  bring  anj^  more  suits  than 
are  fairly  necessary  to  establish  and 
maintain    its    rights." 

See,  further,  the  following  recent 
cases:  Boise  Artesian  Hot  &  Cold 
Water  Co.  v.  Boise  City,  213  U.  S. 
276,  53  L.  Ed.  796,  29  Sup.  Ct.  426 
(suit  in  "class  second";  something 
more  is  required  than  the  beginning 
of  a  single  action  by  defendant  with 
honest  purpose  of  settling  rights  of 
parties);  Kansas  City  Southern  R. 
Co.  V.  Quigley,  181  Fed.  190;  City 
Council  of  Augusta  v.  Timraerman, 
233  Fed.  216,  147  C.  C.  A.  222  ("class 
second";  owner  of  exempt  property 
fears  taxation  in  successive  years; 
held,  danger  of  tax  officers  trying  a 
second  or  a  number  of  times  to  col- 
lect an  improper  tax  after  being 
once  defeated  is  slight) ;  Gallon  Iron 
Works  Co.  V.  Ohio  Corrugated  Cul- 
vert   Co.    (C.    C.    A.),   244    Fed.    427 


(bill  to  enjoin  prosecution  in  the 
same  federal  court  of  five  actions  by 
various  licensees  for  infringement 
of  the  same  patent;  no  allegation 
that  the  plaintiffs  in  these  actions 
refused  to  let  one  be  a  test  case,  or 
that  the  court  could  not  so  arrange 
the  trial  of  the  actions  as  to  prevent 
hardship  or  oppression);  J.  W.  Kelly 
&  Co.  V.  Conner,  122  Tenn.  339,  25 
L.  R.  A.  (N.  S.)  201,  123  S.  W.  622 
(injunction  suit  to  test  the  validity 
of  certain  prohibition  legislation;  not 
to  be  presumed  that  the  prosecuting 
officers  would  harass  the  complain- 
ant after  the  invalidity  of  the  legis- 
lation should  once  be  determined  at 
law). 

§252,  (a)  This  section  is  cited  in 
Prcteca  v.  Maxwell  Land  Grant  Co. 
(C.  C.  A.),  50  Fed.  674,  and  in 
Coombs  V.  Lenox  Realty  Co.,  Ill 
Me.  178,  47  L.  R.  A.  (N.  S.)  1085,  88 
Atl.  477.  Sections  252-260  are  cited 
in  Crawford  County  v.  Hathaway 
(Neb.),  93  N.  W.  781,  796. 


§  252  EQUITY    JURISPRUDENCE.  424 

full  relief  to  the  plaintiff,  without  compelling  him  to  resort 
to  a  prior  action  at  law.^  Whenever  the  plaintiff's  title  is 
disputed,  the  rule  is  settled  that  he  must,  in  general,  pro- 
cure his  title  to  be  satisfactorily  determined  by  at  least  one 
verdict  in  his  own  favor,  by  at  least  one  successful  trial  at 
law,  before  a  court  of  equity  will  interfere;  but  the  rule  no 
longer  requires  any  particular  number  of  actions  or  trials. 
The  reason  for  this  requisite  is,  that  courts  of  equity  will 
not,  in  general,  try  disputed  legal  titles  to  land.  But  the 
rule  is  one  of  expediency  and  policy,  rather  than  an  essen- 
tial condition  and  basis  of  the  equitable  jurisdiction. 2  c     In 

§  252,  2  Hanson  v.  Gardiner,  7  Ves.  305,  309,  310 ;  Livingston  v.  Living- 
ston, 6  Johns.  Ch.  497,  500,  10  Am.  Dec.  353;  Parker  v.  Winnipiseogee, 
etc.,  Co.,  2  Black,  545,  551;  Hacker  v.  Barton,  84  111.  313;  Carlisle  v. 
Cooper,  21  N.  J.  Eq.  576,  579;  Corning  v.  Troy  Iron  Factory,  39  Barb. 
311,  327,  34  Barb.  485,  492,  493;  Webb  v.  Portland  Mfg.  Co.,  3  Sum. 
189;  Lyon  v.  McLaughlin,  32  Vt.  423,  425,  426;  Sheetz's  Appeal,  35  Pa. 
St.  88,  95;  Holsman  v.  Boiling  Spring  Co.,  14  N.  J.  Eq.  335;  Sheldon  v. 
Rockwell,  9  Wis.  166,  179,  76  Am.  Dec.  265  (interfering  with  easements 
of  water) ;  McRoberts  v.  Washburne,  10  Minn.  23,  30;  Letton  v.  Goodden, 
L.  R.  2  Eq.  123,  130  (interfering  with  an  exclusive  ferry  franchise)  ;  East- 
man V.  Amoskeag,  etc.,  Co.,  47  N.  H.  71,  79,  80.  For  the  limitations  on 
this  application  of  the  doctrine,  see  Hughlett  v.  Harris,  1  Del.  Ch.  349, 
352,  12  Am.  Dec.  104.  In  Parker  v.  Winnipiseogee,  etc.,  Co.,  2  Black,  545, 
551,  the  rule  was  thus  stated  by  Swayne,  J. :  Equity  will  restrain  a  pri- 
vate nuisance  by  injunction,  in  order  "to  prevent  oppressive  and  intermin- 
able litigation  or  a  multiplicity  of  suits,  or  when  the  injury  is  of  such  a 
nature  that  it  cannot  be  adequately  compensated  by  damages  at  law,  or 
is  such,  from  its  continuance  or  permanent  mischief,  as  must  occasion  a 
constantly  occurring  grievance,  which  cannot  be  prevented  otherwise  than 
by  an  injunction."  In  Eastman  v.  Amoskeag,  etc.,  Co.,  47  N.  H.  71,  79, 
the  court  refused  to  interfere  and  restrain  an  alleged  private  nuisance, 
because  the  plaintiff's  title  was  disputed,  and  had  not  been  established  by 
even  one  action  at  law. 

§  252,  (b)  The  text  is  cited,  to  the  §  252,   (c)    The   text   is    quoted   in 

point    that    on    demurrer    admitting  First  National  Bank  of  Fort  Wayne 

complainant's  title,  resort  to  an  ae-  v.  Savin,  47  Ind.  App.  266,  94  N.  E. 

tion  at  law  to  establish  his  title  is  347.     This    section   is    cited,    to    the 

not  'necessary:    Cragg    v.    Levinson,  eflfect  that  title  must  be  first 'estab- 

238  111.  69,  21  L.  E.  A.   (N.  S.)   417,  lished  at  law,  in  Carney  v.  Hadley, 

87  N.  E.  121.  32  Fla.  344,  37  Am.  St.  Eep.  101,  22 


425 


TO   PREVENT    A    MULTIPLICITY    OF    SUITS. 


§252 


addition  to  these  ordinary  cases  of  nuisance  and  similar 
continuous  wrongs  to  property,  there  are  some  other  spe- 
cial instances  in  which  a  court  of  equity  has  interfered  and 
determined  the  entire  controversy  by  one  decree,  in  order 
to  prevent  a  multiplicity  of  suits,  where  otherwise  the  plain- 
tiff would  be  compelled  to  bring  several  actions  at  law 
against  the  same  adversary,  and  with  respect  to  the  same 
subject-matter. 3 

§  252,  3  Biddle  v.  Ramsey,  52  Mo.  153,  159,  is  an  example.     Plaintiff 
alleged  that  he  had  leased  premises  to  the  defendant,  and  by  the  lease  it 


L.  R.  A.  233,  14  South.  4;  Wabash. 
R.  Co.  V.  Engleman,  160  Ind.  329, 
66  N.  E.  892;  Bowling' v.  Crook,  104 
Ala.  130,  16  South.  131;  Kennedy  v. 
Elliott,  85  Fed.  832;  also,  in  Dill  v. 
Dill  (Del.),  91  Atl.  450.  The  fol- 
lowing cases  are  illustrations  of  re- 
lief against  continuing  trespasses: 
Carney  v.  Hadley,  32  Fla.  344,  37 
Am.  St.  Rep.  101,  22  L.  R.  A.  233, 
14  South.  4;  Nichols  v.  Jones,  19 
Fed.  855;  Blondell  v.  Consolidated 
Gas  Co.,  89  Md.  732,  46  L.  R.  A.  187, 
43  Atl.  817;  Boston  &  M.  R.  R.  Co. 
V.  Sullivan,  177  Mass.  230,  58  N.  E. 
689;  Davis  v.  Frankenlust  Tp.,  118 
Mich.  494,  76  N.  W.  1045;  Warren 
Mills  V.  N.  O.  Seed  Co.,  65  Miss. 
391,  4  South.  298;  Birmingham  Trac- 
tion Co.  V.  S.  B.  T.  &  T.  Co.,  119 
Ala.  144,  24  South.  731;  Golden  v. 
Health  Dep't,  47  N.  Y.  Supp.  623,  21 
App.  Div.  420;  Hahl  v.  Sugo,  61 
N.  Y.  Supp.  770,  46  App.  Div.  632; 
Olivella  v.  New  York  &  H.  R.  Co., 
64  N.  Y.  Supp.  1086,  31  Misc.  Rep. 
203;  Gibbs  v.  McFadden,  39  Iowa, 
371;  Ten  Eyck  v.  Sjoburg,  68  Iowa, 
625,  27'  N.  W.  785;  Hackney  v.  Mc- 
Ininch,  79  Neb.  128,  112  N.  W.  296. 
But  see  Roebling  v.  First  Nat.  Bank, 
30  Fed.  744.  For  further  discussion 
of  this  subject,  see  Pom.  Eq.  Rem., 
"Injunction  against  Trespass." 


In  the  following  cases  relief  was 
granted  against  continuing  nui- 
sances: Campbell  v.  Seaman,  63  N.  Y. 
568,  20  Am.  Rep.  567;  Coatsworth  v. 
Lehigh  Val.  R.  Co.,  156  N.  Y.  451,  51 
N.  E.  301,  affirming  48  N.  Y.  Supp. 
511,  24  App.  Div.  273;  Sullivan  v. 
Jones  &  Laughlin  Steel  Co.  (Pa.  St.), 
57  Atl.  1065.  See,  further.  Pom. 
Eq.  Rem.,  "Injunction  against  Nui- 
sances." 

In  Nevitt  v.  Gillespie,  1  How. 
(Miss.)  108,  26  Am.  Dec.  696,  a  case 
of  waste,  the  rule  was  laid  down  as 
follows:  "A  court  of  equity  will  not 
entertain  a  bill  of  peace,  when  the 
right  is  controverted  by  two  persons 
only,  until  after  the  right  has  been 
established  satisfactorily  by  a  trial 
at  law."  See,  also,  Taylor  v.  Pearce, 
71  111.  App.  525  (trespass). 

In  Kellett  v.  Ida  Clayton,  etc.,  Co., 
99  Cal.  210,  33  Pac.  885,  it  was  held 
that  a  party  who  by  contract  claimed 
a  right  to  pass  over  a  road  without 
paying  toll  could  not  enjoin  interfer- 
ence with  this  right  until  it  was  es- 
tablished at  law. 

Although  equity  will  not  interfere 
if  the  complainant's  title  be  denied, 
until  he  has  vindicated  it  at  law,  it 
may  retain  the  bill  until  that  has 
been  done.  Washburn's  Appeal,  105 
Pa.  St.  480. 


§  253  EQUITY    JUEISPEUDENCB.  426 

§  253.     Second  Class. — The  second  class,  according  to  my 
previous  arrangement,  consists  of  two  branches.    In  the 

was  stipulated  that  near  the  end  of  the  term  each  should  name  an  appraiser, 
and  they  a  third;  and  that  these  three  appraisers  should  unanimously 
assess  the  value  of  the  improvements  made  by  the  defendant,  and  the 
yearly  rental ;  and  that  the  plaintiff  should  have  an  option  to  buy  such 
improvements  at  the  sum  thus  fixed,  or  to  grant  a  new  lease  to  the  de- 
fendant at  the  rent  thus  fixed,  etc.;  that  defendant  had  by  his  fraud  pre- 
vented any  unanimous  action  of  the  appraisers,  and  had  kept  possession 
of  the  premises  for  more  than  three  years  after  the  end  of  the  term  with- 
out paying  any  rent.  Held,  that  the  suit  in  equity  was  proper,  in  order 
to  give  the  plaintiff  full  relief,  and  to  prevent  a  multiplicity  of  actions 
at  law;  viz.,  plaintiff  would  be  obliged  to  bring  an  action  of  ejectment 
to  recover  possession  of  the  premises,  and  then  other  actions  to  settle 
questions  as  to  the  payment  for  the  buildings  and  other  improvements. 
I  think  the  correctness  of  this  decision  may  be  doubted.  The  plaintiff's 
interest  and  causes  of  action  were  wholly  legal,  and  the  relief  which  he 
obtained  was  also  purely  legal.  It  is  plain,  at  all  events,  that  the  special 
cases  mentioned  in  the  text  must  be  few  in  number.  For  a  clear  state- 
ment of  the  restrictions  upon  this  mode  of  exercising  the  equitable  juris- 
diction to  prevent  a  multiplicity  of  suits,  see  Richmond  v.  Dubuque,  etc., 
R.  R.  Co.,  33  Iowa,  422,  487,  4SS,d  Black  v  Shreeve,  7  N  J.  Eq.  440,  456 
457,  is  a  much  more  appropriate  and  instructive  example.  A  very  long, 
peculiar,  and  complicated  agreement  had  been  executed  by  the  plaintiffs 
and  a  large  number  of  other  persons,  by  which  each  agreed  to  pay  a  cer- 
tain contributory  share,  the  amount  depending  upon  many  contingencies, 
towards  making  up  an  expected  deficiency.  The  plaintiffs  paid  the  whole, 
and  would  necessarily  be  obliged  to  maintain  numerous  and  successive  ac- 
tions at  law  in  order  to  establish  their  own  rights,  and  to  ascertain  and 
recover  the  amounts  payable  by  the  other  parties.  It  was  held  that,  to 
avoid  this  multiplicity  of  actions,  the  plaintiffs  could  sue  in  equity,  and 
have  the  whole  matter  settled  by  one  decree.  It  should  be  observed  that 
the  rights,  liabilities,  and  remedies  of  all  the  parties  were  purely  legal,  since 
they  were  in  no  sense  sureties.® 

§  252,   (d)   Post,  in   note  to   §  263.  ring  breach   of   the    contract   would 

The  above  note  is  cited  in  Clark  v.  require  numerous  actions  at  law,  and 

Sipple  (Del.),  84  Atl.  1.  consequently  granted  an  injunction. 

§  252,   (e)  In  Stovall  v.  McCutchen,  For  another  instance  of  specific  per- 

107  Ky.  577,  92  Am.  St.  Eep.  373,  47  formance  of  a  contract  on  the  ground 

L.  E.  A.  287,  54  S.  W.  969,  a  num-  that  it  called  for  a  continuous  series 

ber    of    merchants    agreed'   to    close  of  acts,  see  Shimer  v.  Morris  Canal 

their  stores  at  a   certain  hour   each  &  B.  Co.,  27  N.  J.  Eq.  364.     On  the 

day.     The  court  held  that  the  recur-  same    ground,    specific    performance 


427  TO    PREVENT    A    MULTIPLICITY    OF   SUITS.  §  253 

first  of  these  the  defendant  has  brought,  or  threatens  to 
bring,  successive  actions  at  law  to  recover  the  same  subject- 
matter  from  the  plaintiff,  where  from  the  rules  of  the  legal 
procedure  the  title  is  not  determined  by  a  judgment  in  any 
such  action  or  number  of  actions.  This  branch  has  there- 
fore been  ordinarily  confined  to  cases  of  successive  actions 
of  ejectment  to  recover  the  same  tract  of  land  from  the 
plaintiff.  It  follows  as  a  matter  of  course  that  equity  will 
not  interfere  on  behalf  of  the  plaintiff,  and  restrain  the 
defendant's  proceedings,  until  the  plaintiff's  title  has  been 
sufficiently  established  by  the  decision  of  at  least  one  action 
at  law  in  his  favor.^-  Indeed,  the  interference  of  equity  as- 
sumes that  the  plaintiff's  legal  right  and  title  have  been 
clearly  determined,  and  its  sole  object  is  to  quiet  that  title 
by  preventing  the  continuance  of  a  litigation  at  law  which 
has  become  vexatious  and  oppressive,  because  it  is  unneces- 
sary and  unavailing.  A  court  of  equity  will  not  therefore 
interfere  to  restrain  the  defendant's  litigation  as  long  as 
the  plaintiff's  title  is  uncertain.^  ^     And  in  analogous  cases, 

§  253,  1  Leighton  v.  Leighton,  1  P.  Wms.  671 ;  Earl  of  Bath  v.  Sherwin, 
Free.  Ch.  261,  10  Mod.  1,  1  Brown  Pari.  C,  266,  270,  2  Brown  Pari.  C, 
Tomlins's  ed.,  217;  Devonshire  v.  Newenham,  2  Schoales  &  L.  208,  209; 
Waller  v  Smeaton,  1  Cox,  102,  1  BroAXTi  Ch.  573;  Earl  of  Darlington  v. 
Bowes,  1  Eden,  270,  271,  272;  Alexander  v.  Pendleton,  8  Cranch,  462, 
468;  Trustees  of  Huntington  v.  Nicoll,  3  Johns.  566,  589,  590,  591,  595, 
601,  602;  Eldridge  v.  Hill,  2  Johns.  Ch.  281;  Woods  v.  Monroe,  17  Mich. 
238;  Knowles  v.  Inches,  12  Cal.  212;  Patterson  v.  McCamant,  28  Mo.  210; 
Bond  V.  Little,  10  Ga.  395,  400 ;  Harmer  v.  Gwynne,  5  McLean,  313,  315. 

of  a  contract  to  pay  alimony  in  cer-  §  253,  (b)  This  paragraph  is  cited 
tain  amounts  at  fixed  periods  was  in  Wehrman  v.  Conklin,  155  U.  S. 
enforced  in  Fleming  v.  Peterson,  314,  15  Sup.  Ct.  129;  Kennedy  v. 
167  III.  465.  Injunction  necessary  Elliott,  85  Fed.  832;  Gordon  v.  Jack- 
to  prevent  monthly  breaches  of  a  son,  72  Fed.  86.  The  text  is  quoted 
contract  extending  over  a  number  of  in  Dishong  v.  Finkbiner,  46  Fed.  12, 
years:  Minnetonka  Oil  Co.  v.  Cleve-  16,  where  many  cases  are  reviewed, 
land  Vitrified  Brick  Co.,  27  Old.  180,  and  it  is  held  that  the  defendant 
111  Pac.  326.  in  ejectment  will  not  generally  be 
§253,  (a)  The  text  is  quoted  in  granted  relief  in  equity  when  his 
United  Cigarette  Mach.  Co.  v.  Win-  title  has  Tseen  determined  in  only 
ston  Cigarette  Mach.  Co.,  194  Fed.  one  action.  See,  also.  Craft  v. 
947,  114  C.  C.  A.  583.  Lathrop,  2  Wall.  Jr.  103,  Fed.  Cas. 


§253 


EQUITY   JURISPKUDENCB. 


428 


not  of  ejectment,  the  court  will  interfere  and  restrain  tlie 
defendant's  further  prosecution  of  successive  actions  at 
law,  and  will  thus  establish  and  quiet  the  plaintiff's  right, 
when  all  the  questions  of  law  and  fact  involved  in  these 
actions  have  already  been  fully  determined  in  the  plaintiff's 
favor  by  some  former  judicial  proceeding  between  the  same 
parties.2 

§  253,  2  As  in  Paterson,  etc.,  R.  R.  v.  Jersey  City,  9  N.  J.  Eq.  434,  the 
city  ofiScials  had  assessed  the  property  of  the  railroad  for  taxes,  state, 
county,  and  city.  The  railroad  brought  a  writ  of  certiorari  to  the  supreme 
'court,  which  held  that  all  these  taxes  were  invalid  because  the  corporation 
was  by  its  charter  exempted  from  all  general  taxation,  and  this  decision 
was  affirmed  by  the  court  of  errors.     Notwithstanding  these  decisions,  the 


No.  3,318;  Pratt  v.  Kendig,  128  111. 
293,  21  N.  E.  495  (immaterial 
whether  the  proceeding  in  which 
the  right  has  been  established  is  an 
action  at  law  or  a  suit  in  equity); 
Marsh  v.  Reed,  10  Ohio,  347;  Caro 
V.  Pensacola  City  Co.,  19  Fla.  766; 
Holland  V.  Challen,  110  U.  S.  15,  19, 
3  Sup.  Ct.  495;  Sharon  v.  Tucker, 
144  U.  S.  542,  12  Sup.  Ct.  720;  Boston 
&  Montana  C.  C.  &  S.  M.  Co.  v. 
Montana  Ore  P.  Co.,  188  U.  S.  632, 
23  Sup.  Ct.  434.  Ante,  notes  to 
§  248.  In  Texas,  where  the  courts 
are  empowered  to  give  such  relief  as 
the  case  may  require,  whether  legal 
or  equitable,  it  is  held  that  the  rules 
that  one  will  not  be  quieted  in  his 
title  until  he  has  established  it  at 
law,  and  that  one  not  in  possession 
cannot  maintain  an  action  to  remove 
a  cloud  from  his  title,  have  no  appli- 
cation: Thomson  v.  Locke,  66  Tex. 
383,  389,  citing  the  text,  §§  242,  253, 
254,  258.  In  Thompson's  Appeal,  107 
Pa.  St.  559,  a  married  woman  in  pos- 
session of  her  separate  estate  was 
allowed  to  maintain  a  bill  in  equity 
to  restrain  repeated  actions  of  eject- 
ment by  a  purchaser  at  sheriff's  sale 
of  said  property,  under  a  judgment 


against  her  husband,  where  such  ac- 
tions were  not  brought  in  good  faith 
and  were  not  prosecuted  to  judg- 
ment, but  were  brought  with  the 
alleged  purpose  of  compelling  the 
payment  of  her  husband's  debt;  and 
where  the  actions  sought  to  be  re- 
strained are  of  such  a  nature  that 
there  is  no  opportunity  to  determine 
the  title,  a  bill  will  lie,  without  the 
title  having  been  first  determined  at 
law:  Langdon  v.  Templeton,  61  Vt. 
119.  In  Porter  v.  Eeed,  123  Mo.  587, 
27  S.  W.  351,  there  had  been  one 
verdict  only  in  complainant's  favor, 
but  several  other  actions  had  been 
brought  against  him  and  abandoned. 
Where  defendant  has  obtained  judg- 
ment in  an  action  at  law,  and  one 
ef  the  parties  thereupon  brings  re- 
peated vexatious  suits  in  equity  to 
obtain  a  new  trial,  dismissing  each 
suit  and  immediately  commencing 
another,  the  defendant  may  obtain 
an  injunction  without  further  es- 
tablishing his  legal  title:  Shevalier 
V.  Stephenson,  92  Neb.  675,  139  N,  W. 
233.  See,  also,  Lyons  v.  Importers 
&  Traders'  National  Bank,  214  Pa. 
428,  63  Atl.  827  (repeated  attach- 
ments). 


429  TO   PREVENT   A    MULTIPLICITY    OF    SUITS.  §  254 

§  254.a  In  the  second  branch  of  the  same  class  the  single 
defendant  has  brought  a  number  of  simultaneous  actions  at 
law  against  the  plaintiff,  all  depending  upon  similar  facts 
and  circumstances,  and  involving  the  same  legal  questions, 
so  that  the  decision  of  one  would  virtually  be  a  decision  of 
all  the  others.  A  court  of  equity  may  then  interfere  and 
restrain  the  prosecution  of  these  actions,  so  that  the  deter- 
mination of  all  the  matters  at  issue  between  the  two  parties 
may  be  brought  within  the  scope  of  one  judicial  proceeding 
and  one  decree,  and  a  multiplicity  of  suits  may  thereby  be 
prevented.  It  must  be  admitted  that  this  exercise  of  the 
equitable  jurisdiction  is  somewhat  extraordinary,  since  the' 
rights  and  interests  involved  are  wholly  legal,  and  the  sub- 
stantial relief  given  by  the  court  is  also  purely  legal.  It 
may  be  assumed,  therefore,  that  a  court,  of  equity  will  not 
exercise  jurisdiction  on  this  particular  ground,  unless  its 
interference  is  clearly  necessary  to  promote  the  ends  of 

city  afterwards  assessed  the  same  kind  of  taxes  again  upon  the  same  prop- 
erty of  the  railroad  in  two  successive  years,  and  was  taking  the  steps 
provided  by  law  for  the  collection  of  these  latter  taxes  by  a  compulsory 
sale  of  the  company's  property.  The  railroad  thereupon  brought  this  suit 
in  equity  for  an  injunction  against  the  city  and  its  officials.  Held,  a 
proper  occasion  for  equity  to  restrain  a  multiplicity  of  suits.  If  the 
plaintiff's  right  has  been  established  by  a  decision  at  law,  there  is  no 
requirement  of  any  particular  number  of  actions  at  law  before  a  suit  in 
equity  can  be  maintained;  one  judgment  at  law  may  be  sufficient." 

§253,  (c)  After  the  illegality  of  a  (Neb.),  93  N.  W.  943,  the  institu- 
tax  has  been  established  at  law,  tion  of  successive  garnishment  pro- 
equity  will  restrain  future  suits  to  ceedings  to  reach  complainant's 
collect.  Bank  of  Kentucky  v.  Stone,  wages,  which  had  been  adjudged  to 
88  Fed.  383.  In  Union  &  Planters'  be  exempt,  was  enjoined. 
Bank  v.  Memphis,  111  Fed.  561,  49  §254,  (a)  This  section  is  cited  in 
C.  C.  A.  455,  the  complainant  alleged  Eureka  &  K.  E.  R.  Co.  v.  Cal.  &  N. 
that  the  right  of  the  defendant  to  E.  Co.,  109  Fed.  509,  48  C.  C,  A.  517; 
tax  it-B  capital  stock  had  been  tried  Thomson  v.  Locke,  66  Tex.  383,  389; 
and  denied.  Accordingly,  an  injunc-  Galveston,  H.  &  S.  A.  E'y  Co.  v. 
tion  to  prevent  future  repetitions  of  Dowe,  70  Tex.  5,  7  S.  W.  368;  also  in 
the  assessment  was  allowed  in  order  Aimee  Eealty  Co.  v.  Haller,  128  Mo. 
to  prevent  a  multiplicity  of  suits.  App.  66,  106  S.  W.  588. 
In    Siever    v.    Union    Pac.    E.    Co. 


§254 


EQUITY   JURISPRUDENCE. 


430 


justice,  and  to  shield  the  plaintiff  from  a  litigation  which 
is  evidently  vexatious.^  It  should  be  carefully  observed 
that  a  court  of  equity  does  not  interfere  in  this  class  of  cases 
to  restrain  absolutely  and  completely  any  and  all  trial  and 
decision  of  the  questions  presented  by  the  pending  actions 
at  law;  it  only  intervenes  to  prevent  the  repeated  or  numer- 
ous trials,  and  to  bring  the  whole  within  the  scope  and  effect 
of  one  judicial  investigation  and  decision.  It  should  also 
be  observed  that  if  the  pending  actions  at  law  are  of  such 
a  nature  or  for  such  a  purpose,  that,  according  to  the  settled 
rules  of  the  legal  procedure,  they  may  all  be  consolidated 
into  one,  and  all  tried  together  by  an  order  of  the  court  in 
which  they  or  some  of  them  are  pending,  then  a  court  of 
equity  will  not  interfere ;  since  the  legal  remedy  of  the  plain- 
tiff is  complete,  certain,  and  adequate,  there  is  no  necessity 
for  his  invoking  the  aid  of  the  equitable  jurisdiction. i  ^ 

§  254,  1  Kensington  v.  White,  3  Price,  164,  167;  Third  Avenue  R.  R.  v. 
Mayor,  etc.,  of  N.  Y.,  54  N.  Y.  159,  162,  163;  West  v.  Mayor  of  N.  Y., 

§254,  (b)  The  text  is  quoted  in 
United  Cigarette  Mach.  Co.  v.  Win- 
ston Cigarette  Mach.  Co.,  194  Fed. 
947,  114  C.  C.  A.  583;  in  Chicago,  R. 
I.  &  G.  Ry.  Co.  V.  Liberal  Elevator 
Co.  (Tex.  Civ.),  182  S.  W.  355;  and 
cited  to  this  effect  in  Boise  Artesian 
Hot  &  Cold  Water  Co.  v.  Boise  City, 
213  U.  S.  276,  53  L.  Ed.  796,  29  Sup. 
Ct.  426. 

§254,  (c)  The  case  of  Galveston, 
H.  &  S.  A.  R'y  Co.  v,  Dowe,  70  Tex. 
5,  7  S.  W.  368,  was  very  similar  to 
that  of  Third  Avenue  R.  R.  Co.  v. 
Mayor  of  N.  Y.,  54  N.  Y.  159,  162, 
163.  A  railroad  contractor  had  issued 
a  number  of  time-checks,  thirty  of 
which,  by  assignment,  had  become 
the  property  of  the  defendant.  The 
latter  brought  separate  suits  on  a 
large  number  of  these  claims  in  a 
justice's  court,  which  had  no  power 
to  consolidate  the  actions.  An  in- 
junction   was    granted    against    the 


prosecution  of  the  separate  suits,  al- 
though the  plaintiff  had  not  estab- 
lished his  right  in  an  action  at  law. 
In  Norfolk  &  N.  B.  Hosiery  Co.  v. 
Arnold,  143  N.  Y.  265,  38  N.  E.  271, 
the  plaintiff  at  law  recovered  judg- 
ment for  royalties.  The  defendant 
appealed,  whereupon  plaintiff  threat- 
ened successive  actions  for  further  in- 
stallments. The  plaintiff  was  finan- 
cially irresponsible,  and  ample  se- 
curity had  been  given.  The  court 
granted  an  injunction  to  stay  the 
further  suits.  Third  Avenue  R.  R. 
Co.  v.  Mayor,  54  N.  Y.  159,  was 
cited.  Featherstone  v.  Carr,  132  N. 
C.  800,  44  S.  E.  592,  was  a  similar 
case  (prosecution  of  monthly  suits 
for  rent,  pending  appeal  from  judg- 
ment awarding  possession  of  the 
premises,  enjoined).  In  Cuthbert  v. 
Chauvet,  60  Hun,  577,  14  N.  Y. 
Hupp.  385,  20  Civ.  Proc.  Kep.  ^yi, 
the  plaintiff  at  law  brought  ten  ac- 


431 


TO   PREVENT    A    MULTIPLICITY    OF   SUITS. 


§255 


§  255.     Third  and  Fourth  Classes.^ — In  pursuing  this  in- 
quiry into  the  extent  and  limitations  of  the  doctrine,  the 

10  Paige,  539.  In  Kensington  v.  White,  3  Price,  164,  defendant  had 
brought  five  separate  actions  at  law  on  five  different  policies  of  insurance 
effected  on  different  ships,  but  between  the  same  parties  and  at  the  same 
time;  the  defense  was  substantially  the  same  in  all, — fraud  of  the  assured. 
The  complainants  (defendants  in  the  five  actions),  the  insurers,  then 
brought  this  suit  in  equity,  to  have  all  the  matters  tried  in  one  suit,  pray- 
ing for  a  discovery,  and  an  injunction  against  the  actions  at  law.  The 
bill  was  held  proper,  in  order  to  avoid  a  multiplicity  of  suits,  as  the  whole 
was  really  one  transaction.     In  Third  Avenue  R.  R.  v.  Mayor  of  N.  Y., 


tiona  of  ejectment  simultaneously 
and  depending  upon  the  same  facts. 
An  injunction  was  issued  against  all 
the  actions  but  one.  Third  Avenue 
K.  B.  Co.  V.  Mayor,  54  N.  Y.  159, 
was  cited.  In  Peters  v.  Prevost,  1 
Paine  C.  C.  64,  Fed.  Cas.  No.  ll,031i, 
the  complainant  sought  to  enjoin 
ninety-two  simultaneous  actions  of 
ejectment.  The  court  held  that  the 
actions  might  be  consolidated  at 
law,  and  refused  relief.  In  Cleland 
V.  Campbell,  78  111.  App.  624,  injunc- 
tion was  refused  against  the  prose- 
cution of  twenty-three  simultaneous 
actions  at  law,  until  the  complain- 
ant's right  should  be  established  at 
law. 

Further  instances  of  exercise  of 
the  jurisdiction:  Guice  v.  Illinois 
Central  E.  Co.,  Ill  Miss.  36,  71 
South.  259  (numerous  suits  against 
railroad  company  for  recovery  of 
statutory  penalties) ;  Aimee  Realty 
Co.  V.  Haller,  128  Mo.  App.  66,  106 
S.  W.  588  (plaintiff  threatened  with 
successive  actions  at  law  growing 
out  of  the  same  contract,  and  in- 
volving the  same  questions  of  fact 
and  law,  the  right  to  have  the  ac- 
tions consolidated  being  doubtful). 

Exercise  of  the  jurisdiction  re- 
fused: City  of  Newark  v.  Chestnut 
Hill  Land  Co.,  77  N.  J.  Eq.  23,  75 
Atl.  644  (action  at  law  was  brought 
against    complainant   city   for    dam- 


ages for  the  diversion  of  water;  the 
city  sought  an  injunction  because 
the  injury  was  continuing  and  it 
would  be  exposed  to  successive 
suits ;  held,  that  the  privilege  of 
coming  into  equity  on  that  ground 
is  the  privilege  of  the  party  injured, 
not  of  the  wrong-doer) ;  St.  Louis 
Southwestern  Ey.  Co.  v.  Woldert 
Grocery  Co.  (Tex.  Civ.  App.),  U^S 
fcJ.  W.  1174  (a  shipper  brought 
seventeen  actions  for  negligence  of 
the  complainant  or  its  connecting 
carriers  in  handling  as  many  sep- 
arate shipments  of  fruit;  as  a  com- 
bination of  the  actions  into  one  suit 
in  equity  would  not  result  in  a 
simplification  of  the  issues  of  law 
and  fact,  under  the  principle  of 
§  251 1^,  ante,  jurisdiction  was  re- 
fused);  Wells  Fargo  &  Co.  v.  Guil- 
heim  (Tex.  Civ.  App.),  169  S.  W. 
1053  (a  similar  case) ;  Chicago,  R.  1. 
&  G.  Ry.  Co.  V.  Liberal  Elevator  Co. 
(Tex.  Civ.  App.),  182  S.  W.  355 
(analogous  case). 

■  §  255,  (a)  This  paragraph  is  cited, 
generally,  in  Brizzolara  v.  City  of 
Ft.  Smith,  87  Ark.  85,  112  S.  W.  181; 
Supreme  Lodge  of  Fraternal  Union 
of  America  v.  Ray  (Tex.  Civ,  App.), 
166  S.  W.  46.  Sections  255  et  seq. 
are  cited  in  City  of  Houston  v. 
Richter  (Tex.  Civ.  App.),  157  S.  W. 
189. 


§  255  EQUITY    JURISPRUDENCE.  432 

third  and  fourth  of  my  classes  may  with  advantage  he  con- 
sidered together.    In  the  third,  a  number  of  persons  have 

54  N.  Y.  159,  162,  163,  the  city  had  brought  seventy-seven  actions  in  a 
justice's  court  to  recover  penalties  for  violating  a  city  ordinance  concern- 
ing the  running  of  cars  without  a  license,  each  action  for  a  separate  pen- 
alty. All  the  actions  depended  upon  similar  facts  and  upon  the  same 
question  of  law,  viz.,  whether  the  railroad  Avas  liable  under  the  ordinance; 
and  a  decision  of  one  would  virtually  decide  all.  The  company  brought 
this  suit  in  equity  to  restrain  the  prosecution  of  all  these  actions  except 
one,  offering  to  abide  the  final  decision  in  that  one.  The  suit  was  sus- 
tained, and  the  relief  granted,  because  a  justice  court  had  no  power  ta 
consolidate  these  actions.  The  decision  was  placed  expressly  upon  the 
power  of  equity  to  prevent  a  multiplicity  of  suits,  and  the  impossibility 
of  the  plaintiff's  being  relieved  in  any  other  manner  from  a  vexatious 
litigation.  The  case  was  held  to  be  distinguishable  from  West  v.  Mayor, 
etc.,  10  Paige,  539,  in  which  an  apparently  contrary  decision  was  made, 
because  in  the  latter  case  the  plaintiff,  West,  sought  to  restrain  absolutely 
all  the  actions  which  were  pending  against  him.  I  would  add  that  some 
of  the  language  in  the  chancellor's  opinion  in  West  v.  Mayor,  etc.,  10 
Paige,  539,  goes  much  further  than  the  distinction  thus  made,  and  can 
hardly  be  reconciled  with  the  decision  of  the  court  of  appeals;  but  the 
decision  in  West  v.  Mayor,  etc.,  10  Paige,  539,  is  clearly  distinguishable. 
In  West  V.  Mayor,  etc.,  10  Paige,  539,  the  city  had  brought  a  considerable 
number  of  actions  against  the  plaintiff,  to  recover  penalties  for  alleged 
violations,  all  similar  in  their  nature,  of  a  city  ordinance.  None  of  these 
actions  had  yet  been  tried.  Plaintiff  then  sued  in  equity  to  have  all  these 
actions  enjoined,  and  to  try  the  whole  matter  in  the  single  equity  suit. 
Chancellor  Walworth  held  that  a  court  of  equity  could  not  interfere, 
because, — 1.  That  equity  would  never  assume  jurisdiction  in  a  case 
analogous  to  the  present  until  the  plaintiff  had  established  his  right  by  a 
successful  defense  in  at  least  one  of  the  actions ;  and  2.  That  equity  would 
never  interfere  when  the  whole  question  was  one  of  law,  and  if  the  law 
was  with  the  plaintiff  he  would  have  a  perfect  defense  in  each  action. 
Such  suits  in  equity  have  been  sustained  where  the  questions  were  of  fact, 
or  of  mixed  law  and  fact;  but  no  bill  can  be  sustained  to  restrain  a  de- 
fendant from  suing  at  law,  where  only  a  question  of  law  is  involved,  and 
when  the  defendant  at  law  (the  plaintiff  in  equity)  must  finally  succeed 
in  his  defense  if  the  law  is  in  his  favor.  It  is  plain  that  both  of  these 
general  grounds  adopted  by  the  chancellor  are  irreconcilable  with  the  sub- 
sequent decision  by  the  court  of  appeals  last  quoted.* 

§  254,  (d)  Injunction  Against  Nu-  question  whether  the  complainant's 
merous  Prosecutions  for  Violation  right  must  first  be  established  at 
of  a  Municipal  Ordinsuice. — On  the       law,    the    recent    cases   are   conflict- 


433 


TO    PREVENT    A    MULTIPLICITY    OF    SUITS. 


§255 


separate  and  distinct  interests,  but  still  united  by  soine 
common  tie,  against  one  determined  party,  and  these  in- 
terests may  perhaps  be  enforced  by  one  equitable  suit 
brought  by  all  the  persons  joining  as  co-plaintiffs,  or  by 


ing.  In  some  jurisdictions,  relying, 
largely,  on  the  authority  of  West  v. 
Mayor,  10  Paige,  539,  successive 
prosecutions  under  a  municipal  ordi- 
nance will  not  be  enjoined  on  the 
ground  of  the  prevention  of  a  multi- 
plicity of  suits,  unless  the  complain- 
ant has  first  established  the  invalid- 
ity of  the  ordinance  by  a  successful 
defense  in  a  suit  at  law.  Poyer  v. 
Village  of  Des  Plaines,  123  111.  Ill, 
5  Am.  St.  Eep.  -194.  See,  also,  Chi- 
cago, B.  &  Q.  R.  R.  Co.  V.  City  of 
Ottawa,  148  111.  397,  36  N.  E.  85; 
Yates  V.  Village  of  Batavia,  79  111. 
500;  Ewing  v.  City  of  Webster  City, 
103  Iowa,  226,  72  N.  W.  511;  City  of 
Bisbee  v.  Arizona  Ins.  Agency,  14 
Ariz.  313,  127  Pae.  722;  City  of 
Chicago  V.  Chicago  City  Ry.  Co.,  222 
111.  560,  78  N.  E.  890  (distinguishing 
cases  of  class  third,  where  the  ordi- 
nance affects  numerous  persons). 
The  majority  of  the  recent  deci- 
sions, however,  appear  to  be  in  ac- 
cord with  the  text.  Joseph  Schlitz 
Brewing  Co.  v.  City  of  Superior,  117 
Wis.  297,  93  N.  W.  1120  (enforce- 
ment of  void  ordinance  enjoined 
though  none  of  the  threatened  pros- 
ecutions had  in  fact  been  com- 
menced); Milwaukee  El.  R.  &  L. 
Co.  v.  Bradley,  108  Wis.  467,  84  ]N. 
W.  870.  In  City  of  Hutchinson  v. 
Beckham,  118  Fed.  399  (C.  C.  A.), 
a  suit  to  enjoin  the  enforcement  of 
an  illegal  city  ordinance  imposing 
a  license  tax,  Thayer,  Cir.  J.,  ob- 
serves: "Now,  conceding  that  the 
validity  of  the  ordinance  might 
have  been  tried  in  any  one  of  the 
criminal  prosecutions  thus  brought 
by  the  city,  yet,  as  the  right  of  ap- 
1—28 


peal  existed  from  any  judgment 
which  might  have  been  rendered 
therein,  it  is  apparent  that  months, 
and  possibly  some  years,  might  have 
elapsed  before  the  invalidity  of  the 
ordinance  would  have  been  defi- 
nitely established,  and  that  in  the 
meantime  the  plaintiffs  might  and 
probably  would  have  been  compelled 
to  defend  a  multitude  of  suits,  and 
submit  to  daily  interruptions  of 
their  business,  which  would  have 
proven  to  be  very  annoying  and 
probably  disastrous."  In  Silvester 
Co.  v.  St.  Louis,  130  Mo.  323,  51 
Am.  St.  Rep.  566,  32  S.  W.  649,  an 
adjudication  at  law  of  the  invalid- 
ity of  the  ordinance  was  held  un- 
necessary. The  court  said:  "While, 
under  the  former  system  of  juris- 
prudence, in  which  relief  in  equity 
was  administered  by  a  different  tri- 
bunal, and  by  a  different  procedure 
from  those  that  gave  relief  at  law, 
courts  of  equity  have  sometimes  re- 
fused to  interfere  before  the  right 
was  established  at  law  (West  v. 
Mayor,  etc.,  10  Paige,  539),  there 
seems  no  good  reason,  under  the 
present  system,  in  code  states,  where 
both  are  blended,  why  such  relief 
should  not  be  granted  in  the  first 
instance  by  injunction."  See,  also, 
Davis  v.  Fasig,  128  Ind.  271,  27  N. 
E.  726;  City  of  Rushville  v.  Kush- 
ville  Natural  Gas  Co.,  132  Ind.  575, 
15  L.  R.  A.  321,  28  N.  E.  853.  See, 
also,  the  recent  cases:  Minneapolis 
General  Electric  Co.  v.  City  of 
Minneapolis,  194  Fed.  215;  Kansas 
City  Gas  Co.  v.  Kansas  City,  198 
Fed.  500  (ordinance  fixing  price  of 
gas) ;    Board    of    Commissioners    of 


§  255  EQUITY    JURISPRUDENCE.  434 

one  suing  on  behalf  of  himself  and  all  the  others,  or  even 
by  one  suing  for  himself  alone>  The  fourth  is  the  exact 
converse  of  the  third.  One  determined  party  has  a  general 
right  against  a  number  of  persons,  common  to  all  in  some 
of  its  features,  but  still  affecting  each  individually,  and  only 
with  respect  to  his  'separate,  distinct  interests,  so  that  each 
of  these  persons  has  a  separate  and  distinct  claim  in  opposi- 
tion to  the  asserted  right.^  It  is  plain  that  the  same  funda- 
mental questions  must  arise  in  both  of  these  classes.  The 
first  and  most  important  question  which  meets  us  is,  What 
must  be  the  character,  the  essential  elements,  and  the  ex- 
ternal form  of  the  common  right,  claim,  or  interest  held  by 
the  number  of  persons  against  the  single  party  in  the  third 
class,  and  by  the  single  party  against  the  number  of  persons 
in  the  fourth  class,  in  order  that  a  court  of  equity  may  ac- 
quire or  exercise  jurisdiction  for  the  purpose  of  preventing 
a  multiplicity  of  suits,  and  may  determine  the  rights  of  all 
and  give  complete  relief  by  one  decree?  Is  it  necessary 
that  the  common  bond,  element,  or  feature  should  inhere  in 
the  very  rights,  interests,  or  claims  themselves  which  sub- 
sist between  the  body  of  persons  on  the  one  side  and  the 
single  party  on  the  other,  and  should  affect  the  nature  and 
form  of  those  rights,  interests,  or  claims  to  such  an  extent 
that  they  create  some  positive  and  recognized  existing  legal 

City  of  Mobile  v.  Orr,  181  Ala.  308,  ion  of  Sanborn,  Cir.  J.;  Macon,  etc., 

45  L.  B.  A.    (N.  S.)    575,  61   South.  R.  B.  Co.  v.  Gibson,  85  Ga.  1,  21  Am. 

920;     Dibrell    v.    City    of    Coleman  St.  Eep.  135,  11  S.  E.  442  j  Osborne 

(Tex.  Civ.  App.),  172  S.  W.  550.    For  v.   Wisconsin   Cent.   R.   Co.,  43   -b'ed. 

further   cases    on   this   subject,    con-  824,   by   Harlan,   J.,   all   illustrating 

suit   Pomeroy's    Eq.    Rem.,    "Injunc-  the  author's   "third   class." 

tion     Against     Municipal     Corpora-  §255,   (c)   This  and  the  following 

tions."     For  relief  in  equity  depend-  sections  are  cited  in  Smith  v.  i>ob- 

ent  on  the  fact   that  the   ordinance  bins,  87  Ga.  303,  13  S.  E.  496,  a  case 

affects   numerous   persons,   see  post,  of  the  "fourth  class."     This  section 

§261,    note,    Third    Class,    (I),    (b).  is   cited   in  Illinois   Cent.   R.   Co.   v. 

§  255,  (b)   This  section  is  cited  in  Garrison,   81   Miss.   257,   95   Am.   St. 

Liiverpool  &  L.  &  G.  Ins.  Co.  v.  Clu-  Rep.  469,  32  South.  996;  Kellogg  v. 

nie,   88   Fed.    160,    167;    Washington  Chenango  Valley  Sav.  Bk.,  42  N.  Y. 

County  V.   Williams,    111    Fed.    801,  Supp.  379,  11  App.  Div.  458,  cases  of 

815,  49  C.  C.  A.  621,  dissenting  opin-  the  "fourth  class." 


435  TO   PREVENT    A    MULTIPLICITY    OF    SUITS.  §  256 

relation  or  privity  between  the  individual  members  of  the 
group  of  persons,  as  well  as  between  each  of  them  and  the 
single  determined  party  to  whom  they  all  stand  in  an  ad- 
versary position?  Or  is  it  enough  that  the  common  bond 
or  element  consists  solely  in  the  fact  that  all  the  rights,  in- 
terests, or  claims  subsisting  between  the  body  of  persons 
and  the  single  party  have  arisen  from  the  same  source, 
from  the  same  event,  or  the  same  transaction,  and  in  the 
fact  that  they  all  involve  and  depend  upon  similar  ques- 
tions of  fact  and  the  same  questions  of  law,  so  that  while 
the  same  positive  legal  relation  exists  between  the  single 
determined  party  on  the  one  side  and  each  individual  of 
the  body  of  persons  on  the  other,  no  such  legal  relation 
exists  between  the  individual  members  themselves  of  that 
body? — as  among  themselves  their  respective  rights,  in- 
terests, and  claims  against  the  common  adversary  party, 
otherwise  than  above  stated,  are  wholly  separate  and  dis- 
tinct. This  question  lies  at  the  foundation  of  the  whole 
discussion.  Others  have  been  suggested,  and  have  been 
considered  by  the  courts,  but  they  are  all  finally  resolved 
into  this,  and  all  depend  upon  its  final  solution  for  their 
answer.  It  is  in  the  solution  of  this  most  important  ques- 
tion, and  in  its  application  to  particular  circumstances, 
that  most  of  the  conflict  of  opinion  among  the  American 
courts  especially  has  arisen.  I  shall  endeavor  to  present 
all  these  conflicting  views  briefly  but  fairly,  and  to  suggest 
my  own  opinion  concerning  their  correctness  and  the 
weight  of  authority :  to  reconcile  them  all  would  be  simply 
impossible. 

§  256.  Community  of  Interest. ^ — The  two  leading  cases 
are  generally  known  as  * '  The  Case  of  the  Fisheries, ' '  i  and 
"The  Case  of  the  Duties." ^     The  former  was  a  bill  to  re* 

§  256,  1  Mayor  of  York  v.  Pilkington,  1  Atk.  282. 

§  256,  2  City  of  London  v.  Perkins,  3  Brown  Pari.  C,  Tomlins's  ed.,  602. 

§256,  (a)  This  paragraph  of  the  Southern  Pac.  R.  Co.,  117  Fed.  544, 
t-ext   is    cited   in    United   States    v.       a  suit  of  the  "fourth  class." 


§  256  EQUITY    JURISPRUDENCE.  436 

strain  a  large  number  of  trespassers,  and  to  establish  the 
23laintiff 's  right  as  against  them.  The  corporation  had  ex- 
ercised and  claimed  an  exclusive  right  of  fishery  over  an 
extent  of  nine  miles  in  the  river  Ouse.  The  defendants 
were  numerous  lords  of  manors  and  owners  of  separate 
tracts  of  land  adjacent  to  the  river,  and  each  claimed,  in 
opposition  to  the  city,  an  individual  right  of  fishery  within 
the  specified  limits  by  virtue  of.  his  separate  and  distinct 
riparian  proprietorship.  Lord  Hardwicke  sustained  the 
bill,  although  the  plaintiff  had  not  established  his  exclu- 
sive title  by  any  action  at  law,  and  although  the  claims  of 
the  various  defendants  were  thus  wholly  distinct,  and  ex- 
pressly placed  his  decision  upon  the  equitable  jurisdiction 
to  prevent  a  multiplicity  of  suits,  since  otherwise  the  cor- 
poration would  be  obliged  to  bring  endless  actions  at  law 
against  the  individual  trespassers.  The  second  case  was 
brought  to  establish  the  right  of  the  city  of  London  to  a 
duty  payable  by  all  merchants  importing  a  certain  article 
of  merchandise.  It  has  ordinarily  been  quoted  and  treated 
as  though  it  was  a  bill  filed  by  the  city  against  a  number  of 
individual  importers  separately  engaged  in  the  trade,  for 
the  purpose  of  establishing  and  enforcing  the  city's  common 
right  to  the  duty  or  tax  in  question.  An  examination  of 
the  record  shows  that  this  is  not  an  accurate  account  of  the 
proceeding;  but  still  the  case  has  generally  been  regarded 
as  an  important  authority  in  support  of  the  equity  jurisdic- 
tion under  the  circumstances  described,  and  such  seems  to 
have  been  the  view  taken  of  it  by  Lord  Hardwicke  in  decid- 
ing the  Fisheries  Case.  There  are  other  English  decisions 
to  the  same  effect,  depending  upon  strictly  analogous  facts, 
and  involving  the  same  doctrine,  which  are  referred  to  in 
the  foot-note.2     There  is  an  opinion  of  Lord  Eedesdale  in 

§  256,  3  Lord  Tenham  v.  Herbert,  2  Atk.  483,  per  Lord  Hardwicke  (see 
the  passage  from  his  opinion  quoted  ante,  in  note  to  §  247) ;  How  v.  Ten- 
ants of  Bromsgrove,  1  Vern.  22,  a  suit  by  the  lord  of  a  manor  to  establish 
a  right  of  free  warren  against  the  tenants  of  his  manor;  Ewelme  Hospital 
V.  Corp'n  of  Andover,  1  Vern.  266,  a  suit  to  establish  the  right  to  hold 


437  TO    PREVENT    A    MULTIPLICITY    OF    SUITS.  §  256 

the  case  of  Whaley  v.  Dawson,  which  has  sometimes  been 
quoted  as  though  it  were  intended  to  furnish  the  true  rule 

a  fair  at  a  particular  place,  and  to  have  certain  profits  and  dues  from 
persons  trading  at  such  fair;  Cowper  v.  Clerk,  3  P.  Wms.  155,  157,  a  bill 
filed  by  a  single  copy-holder  against  the  lord  of  the  manor,  to  be  relieved 
from  an  excessive  fine.  Lord  Chancellor  King  held  that  a  bill  by  a  single 
copy-holder  could  not  be  sustained,  because  the  defense  of  an  excessive 
fine  would  be  admitted  in  an  action  at  law  brought  against  him  by  the  lord. 
But  the  chancellor  added  that  a  bill  would  lie  hy  several  copy-holders  to  he 
relieved  from  a  general  fine,  on  the  ground  of  its  being  excessive,  in  order 
to  prevent  a  multiplicity  of  suits.  This  case,  in  my  opinion,  is  extremely 
important  in  the  extent  to  which  it  carries  the  operation  of  the  doctrine. 
In  Weale  v.  West  Middlesex  Water  Co.,  1  Jacob  &  W.  358,  369,  there  is 
a  very  important  opinion  of  Lord  Chancellor  Eldon  concerning  the  opera- 
tion of  the  doctrine  in  these  classes  of  eases.  The  defendant  was  required 
by  its  charter  to  furnish  water  to  the  inhabitants  of  a  specified  district 
at  reasonable  rates.  The  defendant  had  raised  its  rates,  and  the  plaintiff, 
who  had  been  a  customer,  filed  a  bill  to  compel  the  company  to  keep  on 
furnishing  water  at  the  old  rates,  and  to  restrain  it  from  cutting  off  the 
water  supply,  etc.  Lord  Eldon  said  (p.  369)  :  In  Mayor  of  York  v.  Pilk- 
ington,  1  Atk.  282,  the  plaintiff  had  an  exclusive  right  of  fishery  in  a  cer- 
tain river;  many  persons  claimed  that  they  had  a  right;  and  the  corpora- 
tion sued  to  establish  its  own  exclusive  right;  and  it  was  held  that  the  bill 
was  proper,  because  if  the  corporation  showed  itself  to  have  an  exclusive 
right,  the  rights  of  no  other  individual  persons  could  stand.  "If  any  per- 
son has  a  common  right  against  a  great  many  of  the  king's  subjects, 
inasmuch  as  he  cannot  contend  with  all  the  king's  subjects,  a  court  of 
equity  will  permit  him  to  file  a  bill  against  some  of  them,  taking  care  to 
bring  so  many  persons  before  the  court  that  their  interest  shall  be  such 
as  lead  to  a  fair  and  honest  support  of  the  public  interests;  and  when  a 
decree  has  been  obtained,  then  the  court  will  carry  the  benefit  of  it  into 
execution  against  other  individuals,  who  were  not  parties.  .  .  .  This  would 
be  more  like  that  case  if  it  were  the  direct  converse  of  what  it  is;  because 
it  is  impossible  in  the  nature  of  the  thing  that  Weale  (the  plaintiff)  can 
maintain  a  suit  on  behalf  of  himself  and  other  inhabitants  of  the  district; 
he  can  only  come  into  court  on  the  footing  of  his  own  independent  right." 
See,  also,  Bouverie  v.  Prentice,  1  Brown  Ch.  200;  and  Ward  v  Duke  of 
Northumberland,  2  Anstr.  469;  Arthington  v.  Fawkes,  2  Vern.  356.  The 
doctrine  was  applied  under  analogous  circumstances  in  the  very  recent 
cases  of  Sheffield  Water  Works  v.  Yeomans,  L.  R.  2  Ch.  8, 11,  and  Phillips 
V.  Hudson,  L.  R.  2  Ch.  243,  246.  The  first  of  these  cases  is  a  very  strong 
one.  A  reservoir  of  the  water  company  had  bixrst,  and  damaged  a  large 
number  of    persons.     Under  a    special    statute,  commissioners  were  ap- 


§  256  EQUITY    JURISPRUDENCE.  438 

concerning  the  nature  of  the  common  interests  and  common 
relations  which  must  subsist  among  the  individual  members 
of  the  numerous  body  of  persons  in  the  two  classes  of  cases 

pointed  to  examine  the  claims  of  all  these  persons,  and  to  give  a  certificate 
to  each  one  whose  claim  was  satisfactorily  proved.  Each  certificate  would 
be  prima  facie  a  legal  demand  against  the  company  for  the  amount  of 
damage  certified  in  it;  but  to  enforce  such  certificate,  each  holder  must 
bring  an  action  at  law.  The  commissioners  issued  a  large  number  of  cer- 
tificates, and  among  them  a  certain  class,  fifteen  hundred  in  number,  which 
the  company  claimed  to  be  illegal.  To  avoid  the  multiplicity  of  actions 
against  itself  on  these  certificates,  the  company  brought  this  suit  in  equity 
against  certain  of  the  holders  sued  on  behalf  of  all  the  others,  praying 
to  have  the  certificates  adjudged  invalid,  and  canceled.  Here  was  no  com- 
munity of  right  or  of  interest  in  the  subject-matter  among  these  fifteen 
hundred  certificate  holders.  In  the  form  in  which  their  demands  existed, 
they  did  not  all  arise  from  the  one  wrongful  act  of  the  water  company. 
Each  holder's  demand  and  separate  right  arose  solely  from  the  dealings  of 
the  commissioners  with  him  individually.  The  only  community  of  in- 
terest among  them  was  in  the  question  of  law  at  issue  upon  which  all  their 
rights  depended,  and  in  the  same  remedy  to  which  each  might  be  entitled. 
The  suit  was  sustained  on  demurrer  first  by  Kindersly,  V.  C,  and  on 
appeal  by  Chelmsford,  L.  C.  The  latter  said:  "Strictly  speaking,  this  is 
not  a  bill  of  peace,  as  the  rights  of  the  claimants  under  the  alleged  cer- 
tificates are  not  identical;  but  it  appears  to  me  to  be  within  the  principle 
of  bills  of  this  description.  The  rights  of  the  numerous  claimants  (cer- 
tificate holders)  all  depend  upon  the  same  question.  ...  It  seems  to  me 
to  be  a  very  fit  ease,  by  analogy,  at  least,  to  a  bill  of  peace,  for  a  court  of 
equity  to  interpose  and  prevent  unnecessary  litigation,"  etc.  This  case 
has  a  strong  resemblance  in  its  circumstances,  object,  and  principle  to  the 
celebrated  suit  growing  out  of  the  Schuyler  fraud,  described  under  a  subse- 
quent paragraph.  It  certainly  cannot  be  reconciled  with  the  theory,  main- 
tained by  some  of  the  American  courts,  that  there  must  be  a  common 
interest  in  the  subject-matter,  or  a  common  title  among  the  numerous  body 
of  claimants,  in  order  that  a  court  of  equity  may  interfere  by  such  a  suit.* 
In  Phillips  V.  Hudson,  L.  R.  2  Ch.  243,  246,  Lord  Chancellor  Chelmsford 

§  256,   (b)  The  pertinency  of  Shef-  L.  R.  A.  (N.  S.)   491,  56  South.  198, 

field    Water    Works    v.    Yeomans    to  on  the  ground  that  the  multiplicity 

the  author's  discussion  has  been  as-  of    suits    involved    therein    did    not 

sailed    (see    Southern    Steel    Co.    v.  confer  jurisdiction,  but  that  it  was 

Hopkins,    174    Ala.    465,    Ann.    Cas.  based  upon  an   independent  equity, 

1914B,  692,  40  L.  R.  A.   (N.  S.)  464,  viz.,     the     cancellation     of     invalid 

57    South.    11,    and    Roanoke    Guano  instruments.      This     criticism     rests 

Co.    V.    Saunders,    173    Ala.    347,    35  upon    the    rather    naive    assumption 


439  TO    PREVENT    A    MULTIPLICITY    OF   SUITS.  §  256 

now  under  consideration.'*  It  is  very  evident,  however,  that 
Lord  Redesdale  is  not  alluding  to,  nor  even  contemplating, 
in  this  decision,  any  kind  of  case  in  which  equity  assumes 
jurisdiction  to  prevent  a  multiplicity  of  suits;  he  is  merely 

decided  that  a  suit  will  lie  by  one  copyholder  suing  on  behalf  of  himself 
and  the  others,  against  the  lord  of  a  manor,  to  establish  their  rights  of 
common  in  the  manor;  but  such  a  suit  cannot  be  maintained  by  a  single 
copyholder  suing  alone."  See  the  very  recent  and  instructive  case  of 
Board  of  Supervisors  v.  Deyoe,  77  N   Y.  219,  225.* 

§  256,  4  Whaley  v.  Dawson,  2  Schoales  &  L.  367,  370.  This  was  a  suit 
praying  partition  of  certain  lands  against  the  defendant  D.,  and  also  alleg- 
ing that  by  fraud  the  defendant  C.  had  obtained  from  the  plaintiff  a  lease 
of  a  certain  part  of  said  land,  and  praying,  as  against  the  defendant  C, 
that  such  lease  might  be  set  aside.  This  bill  was  demurred  to  on  the 
ground  of  multifariousness,  and  the  demurrer  was  sustained.  Lord  Redes- 
dale said  (p.  370)  :  "In  the  cases  where  demurrers  on  the  ground  that 
plaintiff  demanded  by  his  bill  matters  of  distinct  natures  against  several 
defendants  not  connected  in  interest  have  been  overruled,  there  has  been 
a  general  right  in  the  plaintiff  covering  the  whole  case,  although  the  rights 
of  the  defendant  may  have  been  distinct.  But  I  take  it  that  where  the 
subjects  of  the  suit  are  in  themselves  perfectly  distinct,  there  is  a  common 
gi'ound  of  demurrer."  Even  if  this  opinion  can  be  regarded  as  having 
any  reference  to  the  eases  under  consideration,  in  which  a  court  of  equity 
may  exercise  jurisdiction  in  order  to  prevent  a  multiplicity  of  suits,  it  very 
plainly  does  not  place  any  practical  limit  to  the  operation  of  the  doctrine; 
it  does  not  in  the  least  ascertain  and  fix  the  common  nature  of  the  interests 
or  relations  which  must  subsist  among  the  body  of  persons,  or  between  them 
individually  and  their  single  adversary.  See,  also,  Bouvei'ie  v.  Prentice, 
1  Brown  Ch.  200;  Ward  v.  Duke  of  Northumberland,  2  Anstr.  469. 

that  jurisdiction  will  always  be  ex-  §  256,  (c)  See,  also,  the  similar  ease 

ercised  for  the  cancellation  of  an  in-  of  Smith  v.  Brownlow,  L.  R.  9  Eq. 

valid   instrument,   regardless   of   the  241. 

adequacy   of   the   defense   at  law   to  §  256,   (d)   A  bill  in  the  nature  of 

that  instrument.     It  is  obvious  from  a  bill   of  peace  may  be  brought  by 

the  facts  of  this  case  that  if  there  a  single  plaintiff,  claiming  rights  in 

had    been    involved    only   one    or    a  the  waters  of  a  stream  against  nu- 

few  invalid  certificates,  the  remedy  merous-    defendants,     to     determine 

by  setting  up  the  invalidity  in  the  and   define    conflicting   rights    to    or 

legal    proceedings   would   have   been  claims  upon  the  waters  of  the  same 

perfectly   simple    and   adequate.      It  stream:   Crawford  Co.  v.  Hathaway, 

was  the  necessity  of  setting  up  that  (JNeb.)     &3     N.     W.    781,     796.     H'ot 

defense   seven    thousand    times,    and  other  analogous  cases,  see  post,  §  ^61, 

that  necessity  alone,  which  rendered  note, 
the  legal  remedy  inadequate. 


§256 


EQUITY    JURISPRUDENCE. 


440 


discussing  the  familiar  objection  of  multifariousness,  where 
the  plaintiff  has  united  two  entirely  separate  subject-mat- 
ters and  defendants  in  the  suit  over  which  equity  had  an 
undoubted  and  exclusive  jurisdiction.  The  other  English 
decisions  very  clearly  do  not  require  any  privity  between 
the  members  of  the  numerous  body,  nor  any  common  ele- 
ment or  feature  inhering  in  the  very  nature  of  their  indi- 
vidual interests  as  between  themselves.^  ® 

§  256,  5  There  is  a  marked  distinction  between  the  case  of  "Weale  v.  West 
Middlesex  Water  Co.,  1  Jacob  &  W.  358,  369,  and  the  Fisheries  Case  and 
others  quoted  in  the  preceding  notes.  There  was  no  common  right  of  any 
kind  among  the  water  consimiers  of  the  district  and  the  company.  It  is 
true,  the  company  was  bound  by  charter  to  supply  all  who  wished  the 
water  and  paid  the  rates;  but  the  immediate  basis  of  the  supply  in  each 
individual  case,  and  the  only  legal  relation  between  each  consumer  and  the 
company,  was  a  distinct,  separate,  voluntary  contract  made  between  such 
consumer  and  the  company.  Each  consumer  stood  upon  his  own  distinct 
contract  as  the  single  source  of  his  right.  There  was  no  sort  of  com- 
munity of  interest  among  the  consumers  of  the  district;  their  rights  were 
not  only  separate,  but  did  not  arise  from  the  same  legal  cause,  or  event, 
or  transaction ;  nor  did  they  depend  upon  the  same  questions  of  law  or  of 
fact.  Very  plainly,  therefore,  they  were  not  in  such  a  position  that  they 
could  all  join  as  co-plaintiffs  in  a  suit  against  the  company;  nor  could 
Weale  sue  on  behalf  of  the  others. 


§  256,  (e)  The  recent  case  of  Duke 
of  Bedford  v.  Ellis,  [1901]  App.  Cas. 
(H.  of  L.)  1,  affirming  Ellis  v.  Duke 
of  Bedford,  [1899]  1  Ch.  494,  is  of 
importance  as  defining  the  right  of 
one  person  to  sue  as  representative 
of  a  class.  There,  several  persons 
sued  on  behalf  of  all  "growers"  of 
fruit,  etc.,  to  enforce  preferential 
rights  which  they  claimed  under 
statutes,  to  stands  in  Covent  Garden 
Market,  seeking  a  declaration  of 
their  rights,  and  an  injunction 
against  their  infringement.  It  was 
declared  (pp.  8,  10)  that  Order  XVI, 
Eul(>  9,  to  the  effect  that  "where 
there  are  numerous  persons  having 
tb.s   same   interest  in   one   cause   or 


matter,  one  or  mors  of  such  persons 
may  sue  or  be  sued  ...  in  such 
cause  or  matter  on  behalf  or  for  the 
benefit  of  all  persons  so  interested," 
simply  extended  to  all  courts  the 
practice  of  the  court  of  chancery, 
which  in  this  respect  "remains  very- 
much  as  it  was  a  hundred  years 
ago."  The  rule  was  not  confined  to 
persons  who  have  or  claim  some 
beneficial  proprietory  right  which 
they  are  asserting  or  defending, 
to  justify  a  person  suing  in  a  repre- 
sentative capacity  it  is  enough  that 
he  has  a  common  interest  with 
those  whom  he  claims  to  represent. 
Dicta  in  Templeton  v.  Russell, 
[1893]   1  Q.  B.  435,  were  overruled. 


441  TO    PREVENTS    MULTIPLICITY    OF    SUITS.  §257 

§  257.  Distinct  Proprietors  Injured  by  One  Wrong.^ — 
There  is  another  important  group  of  cases,  presenting  on 
their  face  a  very  different  condition  of  facts,  which  illus- 
trate the  question  as  to  the  community  of  interests  which 
must  subsist  among  the  individuals  of  a  numerous  body  of 
persons  in  opposition  to  a  single  party,  in  order  that  a 
court  of  equity  may  take  jurisdiction,  and  grant  them  relief 
upon  the  ground  of  preventing  a  multiplicity  of  suits. 
These  are  the  cases  in  which  a  number  of  individual  pro- 
prietors of  separate  and  distinct  parcels  of  land  have  all 
been  interfered  with  and  injured  in  the  same  general  man- 
ner, with  respect  to  their  particular  lands,  by  a  private 
nuisance,  so  that  they  all  have  a  similar  claim  for  legal  re- 
dress against  the  author  of  the  nuisances.  As,  for  example, 
where  a  number  of  different  owners  have  separate  mills 
and  water-powers  along  the  banks  of  a  stream,  and  some 
party  wrongfully  erects  a  dam  or  diverts  the  water,  and 
by  this  unlawful  act  the  property  rights  of  each  owner  are 
injuriously  affected  in  the  same  general  manner,  although 
in  unequal  amounts.  The  instances  are  numerous  in  which 
courts  of  equity  have  interfered,  under  these  and  analogous 
circumstances,  avowedly  on  the  ground  of  preventing  a 
multiplicity  of  suits,  and  have  given  complete  relief  to  all 
the  injured  proprietors  by  a  single  decree. ^  ^    The  cases  of 

§  257,  1  Cadigan  v.  Brown,  120  Mass.  493,  495;  Ballou  v.  Inhabitants  of 
Hopkinton,  4  Gray,  324,  328 ;  Mi;rray  v.  Hay,  1  Barb.  Ch.  59.  43  Am.  Dec. 
773;  Reid  v.  Gifford,  Hopk.  Ch.  416,  419,  420;  but  see  Marselis  v.  Morris 
Canal  Co.,  1  N.  J.  Eq.  31.     In  Cadigan  v.  Brown,  120  Mass.  493,  495,  the 

§257,   (a)  This  section  is  cited  in  following     cases     separate     riparian 

Washington     Co.    v.     Williams,    111  owners  properly  joined  in  a  suit  to 

H'ed.  801,  815,  dissenting  opinion  of  restrain  the  diversion  or  pollution  of 

Sanborn,    Cir.    J.;    Osborne    v.    Wis-  the    stream:     Barham    v.   Hostcttor, 

consin   Central  E.   Co.,  43  Fed.   824,  67  Cal.  272,  7  Pac.  689;  Churchill  v. 

by  Harlan,  J.;  also,  in  Brown  v.  At-  Lauer,    84    Cal.    233,    24    Pac.    107; 

lantic   &  B.   R.  Co.,   126   Ga.  248,   7  Foreman   v.   Boyle,   88   Cal.   290,   26 

Ann.  Cas.  1026,  55  S.  E.  24.  Pac    94;    Middleton    v.    Flat    R.    B. 

§257,  (b)  The  text  is  cited  to  this  Co.,  27  Mich.  533;  Emery  v.  Erskine, 

effect  in  Watson  v.  Huntington,  215  66  Barb.  9;  Lonsdale  Co.  v.  Woon- 

Fed.  472,   131  C.  C.  A.  520.     In  the  socket,  21  R.  I.  498,  44  Atl.  929,  and 


§  257  EQUITY   JUEISPBUDENCB.  442 

this  group  are  exceedingly  important  in  their  bearing  upon 
the  question  under  examination  as  to  the  true  meaning  and 

plaintiffs  were  individual  owners  of  separate  lots  abutting  on  a  passage- 
way, each  holding  under  a  distinct  title  from  a  different  grantor.  Defend- 
ant began  an  erection  which  would  permanently  block  up  the  passage  and 
interfere  with  each  plaintiff's  right  of  way,  and  was  therefore  a  nuisance. 
The  plaintiffs  brought  this  suit  to  restrain  the  further  erection,  and  to 
remove  the  obstruction.  Held,  that  the  suit  should  be  sustained,  and  that 
all  the  plaintiffs  could  join  in  one  suit  in  equity  on  the  ground  of  prevent- 
ing a  multiplicity  of  suits,  since  at  law  each  owner  must  biing  a  separate 
action.  "The  plaintiffs,  although  they  hold  their  right  under  separate 
titles,  have  a  common  interest  in  the  subject  of  the  bill.  They  are  affected 
in  the  same  way  by  the  acts  of  the  defendant,  and  seek  the  same  remedy 
against  him.  The  rights  of  all  parties  can  be  adjusted  in  one  decree,  and 
a  multiplicity  of  suits  is  prevented";  citing  Ballou  v.  Hopkinton,  and 
Murray  v.  Hay.  In  Ballou  v.  Inhabitants  of  Hopkinton,  4  Gray,  324,  328, 
the  plaintiffs  were  individual  owners  of  separate  mills  on  the  banks  of  a 
stream,  and  each  drew  a  supply  of  water  for  his  own  mill  from  a  dam 
higher  up  on  the  stream,  which  had  been  built  by  all  of  these  proprietors. 
The  defendants  had  begun  to  draw  water  from  this  dam,  not  removing 
or  in  any  way  interfering  with  the  structure  itself,  but  simply  diverting 
the  water,  so  that  the  supply  for  each  mill  was  lessened,  and  might  be 
rendered  insufficient.     It  was  held  that  the  plaintiffs  could  join  in  one 

cases  cited;  Strobel  v.  Kerr  Salt  Co.,  Middlebury  Electric  Co.,  80  Vt.  109, 
164  N.  Y.  303,  79  Am.  St.  Rep.  643,  11  L.  R.  A.  (N.  S.)  693,  66  Atl.  10o9 
51  L.  R.  A.  687,  58  N.  E.  142.  In  (flooding);  Norton  v.  Colusa  P.  M. 
the  last  case  the  court  says:  "They  &  S.  Co.,  167  Fed.  202  (pollution), 
all  have  a  common  grievance  against  Owners  of  distinct  lots  abutting 
the  defendant  for  an  injury  of  the  upon  a  street  joined  in  suits  to  re- 
same  kind,  inflicted  at  the  same  strain  common  nuisances,  in  Geur- 
time  and  by  the  same  acts.  The  kinli  v.  Petaluma,  112  Cal.  306,  44 
common  injury,  although  differing  Pac.  570  (watercourse  so  diverted 
in  degree  as  to  each  owner,  makes  as  to  interfere  with  plaintiffs'  ease- 
a  common  interest,  and  warrants  a  ment  in  the  street);  Younkin  v.  Mil- 
common  remedy.''  See  the  well-con-  waukee  Co.,  112  Wis.  15,  87  N.  W. 
sidered  case  of  State  v.  Sunape©  861  (railway  unlawfully  constructed 
Dam  Co.  (N.  H.),  55  Atl.  899,  where  in  street;  but  see  contra,  Fogg  v. 
the  court  was  evenly  divided  on  the  Nevada  C.  V.  E.  Co.,  20  Nev.  429,  23 
question  of  jurisdiction  to  award  Pac.  840) ;  Sullivan  v.  Phillips,  110 
damages  in  lieu  of  injunction.  See,  Ind.  320,  11  N.  E.  300  (drain  so  con- 
also,  the  following  recent  cases:  structed  as  to  flood  plaintiff's 
Hough  V.  Porter,  51  Or.  318,  95  Pac.  lands).  Other  nuisances  affecting 
732,  98  Pac.  1083,  102  Pac.  728;  Teel  plaintiffs  similarly:  flooding  plain- 
V.  Rio  Bravo  Oil  Co.,  47  Tex.  Civ.  tiff's  lands  by  deepening  a  certain 
App.  153,   104  S.  W.  420;   Cloyes  v.  ditch,  Foot  v.  Bronson,  4  Lans.  47; 


443  TO   PREVENT   A   MULTIPLICITY   OF   SUITS.  §  257 

extent  of  the  doctrine  concerning  the  prevention  of  a  multi- 
plicity of  suits.    At  law,  the  only  remedy  was  an  action  for 

equity  suit,  and  restrain  the  defendants  by  injunction,  in  order  to  prevent 
a  multiplicity  of  suits.  In  Murray  v.  Hay,  1  Barb.  Ch.  59,  43  Am.  Dec. 
773,  the  plaintiffs  were  in  like  manner  owners  of  separate  dwellings,  which 
were  all  injured  by  a  single  nuisance,  of  which  the  defendant  was  the 
author.  It  was  held  that  they  could  all  unite  and  obtain  full  relief  of 
injunction  and  removal  by  one  decree ;  citing  Kensington  v.  White,  3  Price, 
164;  Mills  v.  Campbell,  2  Younge  &  C.  389;  Reid  v.  Gifford,  Hopk.  Ch. 
416;  Trustees  of  Watertown  v.  Cowen,  4  Paige,  510,  27  Am.  Dec.  80. 
In  Reid  v.  Gifford,  Hopk.  Ch.  416,  the  plaintiffs  were  in  the  same  manner 
owners  of  separate  parcels  of  land  on  a  mill  stream,  and  of  separate 
water  rights  in  such  stream.  Defendant  owned  another  mill-site  on  the 
same  stream.  He  had  cut  a  ditch  or  canal,  by  which  he  diverted  water 
from  the  stream,  and  thereby  injured  all  the  plaintiffs  in  the  same  manner, 
but  in  varying  amounts.  Plaintiffs  united  in  this  suit  to  obtain  an  in- 
junction, and  to  abate  the  nuisance.  Their  suit  was  sustained.  It  was 
expressly  held  that  they  all  had  such  a  community  of  interest  in  the  subject- 
matter  of  the  suit  that  they  could  join  in  the  bill.  It  was  further  held 
that  since  they  had  long  been  seised  in  fee  of  their  respective  premises, 
and  in  undisturbed  possession  thereof,  no  verdict  or  judgment  at  law  was 
necessary  to  establish  their  rights,  and  as  a  prerequisite  to  their  invoking 
the  aid  of  equity. 

establishing  a  cemetery,  Jung  v.  affect  all  the  complainants,  not  pre- 
Nerez,  71  Tex.  396,  9  S.  W.  344;  cisely  at  the  same  instant,  and  in 
erecting  a  wooden  building  within  the  same  degree,  but  in  the  same 
the  fire  limits  of  a  town,  First  Nat.  general  period  of  time,  and  in  a 
Bank  v.  Sarlls,  129  Ind.  201,  28  Am.  similar  way,  so  that  the  same  re- 
fit. Rep.  185,  13  L.  R.  A.  401, 28  N.  E.  lief  may  be  had  in  the  single 
434  ("their  common  danger  and  com-  suit,  whether  there  be  one,  two, 
men  interest  in  the  relief  sought  or  a  dozen  plaintiffs."  See,  further, 
authorizes  them  to  join  in  the  ac-  American  Smelting  &  Refining  Co.  v. 
tion") ;  offensive  manufacture,  Blunt  Godfrey,  158  Fed.  225,  14  Ann.  Cas. 
v.  Hay,  4  Sandf.  Ch.  (N.  Y.)  362;  8,  89  C.  C.  A.  139  (nuisance  from 
Whipple  V.  Guile,  22  R.  I.  576,  4S  noxious  gases):  Gus  Blass  Dry 
Atl.  935  (nuisance  from  noise),  re-  Goods  Co.  v.  Reinman,  102  Ark.  287, 
viewing  many  eases;  maintaining lu-  143  S.  W.  1087  (livery-stable); 
natic  asylum  carelessly,  Rowbotham  Brown  v.  Atlantic  &  B.  R.  Co.,  Iii6 
V.  Jones,  47  N.  J.  Eq.  337,  20  Atl.  Ga.  248,  7  Ann.  Cas.  1026,  55  S.  E. 
731,  reviewing  the  New  Jersey  cases  24  (persons  living  along  the  line  of 
and  concluding  that  "the  meaning  of  a  railroad  united  in  a  suit  to  enjoin 
the  rule,  so  far  as  it  permits  several  the  company  from  tearing  up  its 
to  join  as  complainants,  is  that  all  tracks  and  abandoning  the  line; 
the   grievances   complained   of   shall  citing  this  paragraph). 


§  257  EQUITY   JURISPKUDENCB.  444 

damages  by  each  owner  against  the  author  of  the  nuisance 
or  trespass.  It  cannot  be  pretended  that  there  existed 
among  the  various  owners  with  respect  to  each  other,  or 
as  between  their  entire  body  and  the  defendant,  any  com- 
mon bond  or  interest  to  which  the  term  ''privity"  can  be 
applied,  or  which  bore  the  slightest  resemblance  to  any 
species  of  privity.  In  fact,  there  did  not  exist  among  them 
as  individual  owners,  or  between  them  as  a  body  and  the 
defendant,  any  distinct  legal  relation  whatever  which  the 
law  recognizes.  The  only  common  bond  among  them  as 
individuals,  or  between  them  as  a  body  and  the  defendant, 
consisted  in  the  fact  that  they  each  and  all  suffered  the 
same  kind  of  wrong  to  their  separate  properties,  arising 
at  the  same  time  and  from  the  same  tortious  act  of  the 
defendant,  and  in  the  fact  that  the  legal  causes  of  action 
and  remedial  rights  of  each  and  all  were  the  same,  depend- 
ing upon  similar  matters  of  fact  and  the  same  rules  of  law. 
They  were  in  exactly  the  same  position  as  that  of  any  body 
of  men  who  have  all  separately  and  individually  suffered 
the  same  kind  of  injury  to  their  persons  or  their  properties 
by  one  trespass  or  other  wrongful  act;  only  in  their  cases 
the  subject-matter  which  directly  received  the  injury — the 
parcels  of  land — and  the  wrong  itself — the  nuisance  or  con- 
tinued trespass — were  of  such  a  nature  as  brought  them 
within  the  possible  jurisdiction  of  equity,  since  a  court  of 
equity  could  never  take  jurisdiction  in  a  case  of  mere  wrong 
to  the  persons  or  the  reputation  of  the  injured  parties. 
And  yet  in  each  decision  it  was  expressly  held  that  there 
was  a  sufficient  community  of  interest  in  the  subject-matter 
of  the  suit  to  enable  a  court  of  equity  to  exercise  its  juris- 
diction on  behalf  of  the  united  plaintiffs.  The  conclusion, 
therefore,  seems  to  me  irresistible,  that  this  group  of  de- 
cisions cannot  be  reconciled  with  that  theory  of  the  juris- 
diction which  requires,  in  cases  of  the  third  and  fourth 
classes,  a  privity  of  interest  or  common  legal  relation  exist- 
ing among  all  the  individuals  of  the  body  of  persons  who 
assert  their  separate  claims   against  a  single   adversary 


445 


TO   PREVENT    A    MULTIPLICITY    OF    SUITS. 


§257 


party,  in  order  that  a  court  of  equity  may  interfere  on  tlieir 
united  behalf  against  him,  or  on  his  behalf  against  them.^  « 

§  257,  2  It  may,  perhaps,  be  said,  in  explanation  of  the  judicial  action 
in  this  group  of  cases,  that  on  account  of  the  continuous  nature  of  the 
vfvong — the  nuisance  or  trespass — each  separate  owner,  in  addition  to  his 
actions  at  law  for  damages,  would  be  entitled  to  maintain  a  separate  suit 


§  257,  (c)  This  seems  an  appro- 
priate place  to  notice  a  criticism 
urged  with  much  earnestness  against 
the  author's  treatment  of  his  "Thirtl 
and  Fourth  Classes,"  viz.,  that  he 
has  confused  "distinct  things  in  his 
view  of  this  subject,  to  wit:  joinder 
of  parties,  and  avoidance  of  multi- 
plicity of  suits.  It  has  been  found 
that  many  of  the  cases  he  pressed 
into  service  to  support  his  assertion 
are  on  the  subject  of  joinder,  where 
confessedly  there  could  be  no  doubt 
that  the  matter  was  of  equity  cogni- 
zance,'' etc.  Tribette  v.  Illinois 
Central  R.  E.  Co.,  70  Miss.  182,  35 
Am.  St.  Rep.  642,  19  L.  R.  A.  660,  12 
South.  32,  1  Keener's  Cas.  Eq.  Jur. 
148,  2  Ames  Cas.  Eq.  Jur.  74.  It 
would  seem  that  a  very  moderate 
degree  of  reflection  should  suflBce  to 
show  that  a  statement  of  the  ac- 
cepted rules  as  to  the  joinder  of 
parties  is  an  essential  and  vital  part 
of  the  author's  arguments.  It  is 
conceded  on  all  hands  that  the  nu- 
merousness  of  parties  is,  under  cer- 
tain circumstances,  viz.,  the  exist- 
ence of  a  "privity  of  interest" 
among  them — an  independent  ground 
of  equity  jurisdiction.  It  has  been 
established  by  eases  innumerable 
that  this  "privity  of  interest" 
among  numerous  parties  is  not,  as 
was  once  supposed,  a  requisite  to 
their  joinder  in  an  ordinary  suit  in 
equity.  Why,  then,  make  it  a  requi- 
site to  the  jurisdiction  based  on 
numerousness  of  parties,  and  thus 
spply  to  cases  within  that  jurisdic- 
tion a  rule  as  to  parties  wholly  arbi- 


trary and  narrower  than  the  rule  aa 
to  joinder  of  parties  in  other  suitslf 
It  is  not  the  relation  of  privity 
among  the  parties  that  gives  rise  to 
the  jurisdiction  of  a  court  of  equity, 
but  their  multitude,  and  the  facili- 
ties of  the  procedure  in  that  court 
for  joining  them  and  disposing  of 
all  the  numerous  legal  issues  in  a 
single  equitable  issue.  In  any 
logical  view  of  the  subject,  the 
measure  of  the  jurisdiction  to  enter- 
tain a  bill  of  peace  should  be  as 
broad  as  the  measure  of  the  court's 
ability,  in  accordance  with  its  set- 
tled rules,  to  join  the  numerous  par- 
ties in  a  single  suit.  Such  is  the 
nature  of  the  author's  argument,  as 
the  editor  understands  it;  and, 
clearly,  a  most  important  link  in  the 
chain  is  the  statement  and  proof  of 
the  modern  rules  as  to  joinder  of 
parties,  based,  as  these  rules  are,  not 
on  the  relationship  of  the  parties 
among  themselves,  but  on  their  com- 
munity of  interest  in  the  questions 
involved  in  the  suit.  This  identity 
between  the  rules  as  to  joinder  in 
all  other  equity  actions,  and  the 
rules  as  to  joinder  which,  as  the 
author  shows,  guide  the  exercise  ot 
the  jurisdiction  in  bills  of  peace,  is 
clearly  recognized  in  Lehigh  Valley 
R.  R.  Co.  V.  McFarlan,  31  N.  J.  Eq. 
730,  759,  1  Keener's  Cas.  Eq.  Jur. 
133.  "The  question  [of  joinderj 
has  generally  arisen  on  demurrer  to 
bills  in  causes  of  purely  equitable 
cognizance.  But  in  this  respect 
there  is  no  difference  between  such 
bills  and  bills  of  peace.     A  bill  ot 


§  258  EQUITY    JURISPRUDENCE.  446 

§  258.a  Distinct  Proprietors  Relieved  from  Local  Assess- 
ments.— I  pass  now  to  consider  another  and  even  more  in- 
teresting group  of  cases,  which  cliiefly  belong,  with  one  or 
two  exceptions,  to  the  judicial  history  of  this  country,  and 
in  which  more  than  in  any  other  has  arisen  the  direct  con- 
flict of  judicial  opinion  already  mentioned.  I  refer  to  cases 
brought  by  or  on  behalf  of  a  body  of  individual  tax-payers 

in  equity  on  his  own  behalf,  and  thereby  restrain  the  further  wrong.  It 
would  be  enough  to  answer  that  in  no  instance  was  the  decision  put  upon 
any  such  ground.  In  every  instance  the  court  rested  its  decree  upon  the 
broad  ground  that  the  legal  remedies  of  the  individual  plaintiffs  were  im- 
perfect, and  that  as  there  was  a  sufficient  community  of  interest  in  the 
subject-matter  among  them,  they  could  properly  unite  in  the  single  equi- 
table proceeding,  in  order  to  prevent  a  multiplicity  of  suits.  But  even 
admitting  the  facts  above  stated  to  their  fullest  extent,  they  do  not  in  the 
slightest  degree  alter  or  affect  the  conclusions  reached  in  the  text,  nor 
furnish  any  different  explanation  of  the  action  of  the  courts  in  exercising 
their  jurisdiction.  Even  if  each  individual  plaintiff  would  have  had  a 
right  to  equitable  relief  as  well  as  to  the  legal  relief  of  damages,  the 
equitable  jurisdiction  to  prevent  a  multiplicity  of  suits  is  never  made  to 
rest  upon  the  particular  kind  or  extent  of  relief  which  an  individual 
party  might  otherwise  have  obtained  in  a  separate  suit.  It  always  as- 
sumes that  some  relief,  either  legal  or  equitable,  could  have  been  thus 
obtained;  and  the  only  question,  in  cases  of  the  third  and  fourth  classes, 
is,  whether  there  is  a  sufficient  common  bond  among  the  body  of  similarly 
situated  persons  on  the  one  side  of  the  controversy  to  authorize  the  court 
to  interfere  and  give  complete  relief  to  them  or  against  them  aU  in  one 
proceeding,  and  thus  avoid  a  multiplicity  of  suits.* 

peace  which  shall  draw  within  equi-  table    cognizance.     17    N.    Y.    608, 

table    cognizance    causes    of    action  Comstock,  J."    See,  also,  Williams  v. 

which  are  purely  legal  in  their  char-  County   Court,   26   W.   Va.   488,   516, 

acter,    must    conform    to    the    rules  53  Am.  Rep.  94. 

and    principles    of    ordinary    equity  §  257,   (d)    This    sentence    of    the 

pleading,    and,    in    addition   thereto,  note  is  quoted  by  Parker,  C.  J.,  in 

must    possess   another   element   aris-  Mack  v.  Latta  (N.  Y.),  71  N.  E.  97. 

ing  from  the  number  of  the  parties  §  258,    (a)    This   and   the   two   f ol- 

interested  and  the  multitude  of  ac-  lowing    sections    are  cited  with  ap- 

tual    or    threatened    suits.     In    such  proval    in    Carlton    v,    Newman,    77 

cases  there  must  be  such  a  unity  of  Me.   408,   415,   1   Atl.   194;    Allen   v. 

interest    on     the    one    side    or    the  Intendant,    etc.,   of   La    Fayette,    89 

other,  as  would  justify  a  joinder  of  Ala.  641,  9  L.  E.  A.  497,  8  South.  30. 
the  parties  in  causes  of  purely  equi- 


447  TO    PREVENT    A    MULTIPLICITY    OF   SUITS.  §  259 

or  owners  of  distinct  tracts  of  land  to  be  relieved  from  il- 
legal assessments  upon  their  separate  properties,  made  by 
municipal  corporations  to  defray  the  expense  of  local  im- 
provements ;  or  from  general  taxes,  either  personal  or  made 
liens  on  property,  unlawfully  assessed  and  levied  by  coun- 
ties, towns,  or  cities ;  or  to  set  aside,  annul,  and  be  relieved 
from  some  unlawful  public,  official,  and  corporate  act  of  a 
county,  town  or  city, — by  means  of  which  a  public  debt 
would  be  created,  and  the  burden  of  individual  taxation 
would  be  ultimately  increased.  Those  instances  in  which 
the  jurisdiction  has  been  exercised  and  the  relief  granted 
will  alone  be  considered  at  present;  those  in  which  it  has 
been  denied  to  exist  will  be  postponed  to  subsequent  para- 
graphs, in  which  the  general  limitations  upon  the  doctrine 
are  examined.  I  shall  take  up  first  in  order  the  cases  of 
local  assessments,  and  secondly,  those  of  general  taxes  and 
of  official  acts  creating  public  indebtedness  and  final  taxa- 
tion. 

§  259.  Relief  from  lUegaJ  Taxes  and  Other  Public  Bur- 
dens in  General. — There  are  numerous  decisions  to  be  found 
in  the  reports  of  several  states  of  equity  suits  brought  by 
land-owners  to  set  aside  illegal  assessments  or  taxes  laid 
upon  their  property,  in  which  one  court  after  another  has 
repeated  the  formula  that  the  suit  would  be  sustained  and 
the  relief  granted  whenever  it  was  necessary  to  remove  a 
cloud  from  title,  or  to  prevent  a  multiplicity  of  suits.  In 
none  of  these  cases  is  any  attempt  made  to  determine  when 
the  relief  would  be  necessary  or  appropriate  for  the  pur- 
pose of  preventing  a  multiplicity  of  suits;  and  in  most,  if 
not  all,  of  them  the  relief  was  refused  and  the  suit  dismissed 
expressly  on  the  ground  that  it  did  not  come  within  the 
equitable  jurisdiction  to  prevent  a  multiplicity  of  suits.  It 
is  plain,  therefore,  that  these  decisions,  notwithstanding 
the  general  formula  which  they  all  announce,  do  not  affirma- 
tively define  the  extent  of  the  jurisdiction;  but  their  au- 
thority, so  far  as  it  goes,  is  opposed  to  the  exercise  of  the 


§  260  EQUITY    JURISPRUDENCB.  448 

jurisdiction,  under  all  ordinary  circumstances,  in  tlie  class 
of  cases  described.^ 

§  2Q0.^  I  pass  to  a  line  of  cases  mucli  more  definite  and 
direct  in  their  bearing  upon  the  questions  under  discussion. 
Assessments  for  local  improvements  by  municipal  corpora- 
tions are  generally  made  a  lien  upon  the  lands  declared  to 
be  benefited  thereby;  and  where  such  is  the  case,  the  in- 
stances are  numerous  in  which  suits  in  equity  brought  by  a 
number  of  individual  owners  of  separate  lots,  or  by  one 
owner  suing  on  behalf  of  himself  and  all  the  others  similarly 
situated,  to  procure  the  enforcement  and  collection  of  the 
assessment  to  be  enjoined,  and  the  assessment  itself  to  be 
set  aside  and  annulled  on  account  of  its  illegality,  have  been 
sustained  upon  the  avowed  ground  that  such  relief  granted* 
in  a  single  proceeding  was  both  proper  and  necessary  in 
order  to  prevent  a  multiplicity  of  suits.  In  all  these  cases 
each  separate  land-owner  had,  of  course,  some  kind  of  legal 
remedy,  either  by  action  for  damages  against  the  officer  en- 
forcing the  unlawful  collection,  or  by  writ  of  certiorari  to 
review  the  assessment  itself.     But  such  remedy  was  inade- 

§  259,  1  Guest  v.  Brooklyn,  69  N.  Y.  506,  512,  513;  Heywood  v.  Buffalo, 
14  N.  Y.  534,  541;  Mayor  of  Brooklyn  v.  Messerole,  26  Wend.  132,  140; 
Ewing  V.  St.  Louis,  5  Wall.  413,  418,  419 ;  Dows  v.  Chicago,  11  Wall.  108, 
110,  111;  Scribner  v.  Allen,  12  Minn.  148;  Minnesota  Oil  Co.  v.  Palmer, 
20  Minn.  468;  White  Sulphur  Springs  Co.  v.  Holley,  4  W-  Va.  597;  Bouton 
V.  City  of  Brookl}^!,  15  Barb.  375,  387,  392;  Harkness  v.  Board  of  Public 
Works,  1  McAr.  121,  131-133.  In  each  of  these  eases  the  general  proposi- 
tion was  laid  down  as  stated  in  the  text,  but  in  each  the  court  refused 
to  exercise  jurisdiction  and  to  give  any  equitable  relief,  on  the  ground 
that  such  a  case  does  not  come  within  the  operation  of  the  doctrine  con- 
cerning a  multiplicity  of  suits.  In  Guest  v.  Brooklyn,  69  N.  Y.  506,  512, 
513,  it  was  further  held  that  the  assessment,  being  divided  into  a  number 
of  installments  payable  annually,  did  not  bring  the  case  within  the  doc- 
trine, because  each  lot-owner  had  a  sufficient  remedj*  at  law,  and  a  decision 
on  one  installment  would  settle  his  liability  as  to  all. 

§260,    (a)    This    section    is    cited       Keese   v.   City   of  Denver,   10   Colo, 
with  approval  in  Dumars  v.  City  of       113,  15  Pac.  825. 
Denver    (Colo.   App.),   65   Pac.   580; 


449 


TO    PREVENT    A    MULTIPLICITY    OF    SUITS. 


§260 


quale  wlien  compared  with  the  comprehensive  and  complete 
relief  furnished  by  the  single  decree  in  equity.^**     The  ju- 

§  260,  1  Ireland  v.  City  of  Rochester,  51  Barb.  415,  435;  Scofield  v.  City 
of  Lansing,  17  Mich.  437;  City  of  Lafayette  v.  Fowler,  34  Ind.  140;  Ken- 
nedy V.  City  of  Troy,  14  Hun,  308,  312;  Clark  v.  Village  of  Dunkirk,  12 
Hun,  181,  187.  In  Ireland  v.  City  of  Rochester,  51  Barb.  415,  about 
ninety  owners  of  distinct  lots  on  a  certain  avenue  united  in  the  suit  to 
restrain  the  collection  of  an  illegal  and  void  assessment,  made  in  different 
amounts  on  their  lots  by  the  city  authorities,  in  a  proceeding  to  improve 
the  avenue.  The  assessment  was  held  void,  and  the  suit  was  sustained  on 
the  express  ground  that  a  multitude  of  suits  was  thereby  prevented. 
Henry  R.  Selden,  Esq.,  who  was  counsel  for  the  plaintiffs,  said  (p.  420) : 
"If  the  collection  had  been  proceeded  with,  more  than  eighty  suits  would 
have  been  necessary  to  accomplish  what  can  better  be  done  by  this  suit 
alone.     Avoiding  a  multii^licity  of  suits  is  good  ground  for  equity  juris- 


§260,  (b)  Enjoining  Municipal 
Assessments. — The  conclusions  of 
the  author  with  respect  to  classes 
third  and  fourth  were  approved,  and 
the  principle  applied  to  the  en- 
joining of  illegal  special  assess- 
ments, in  Keese  v.  City  of  Denver, 
10  Colo.  113,  15  Pac.  825,  and  in 
Dumars  v.  City  of  Denver  (Colo. 
App.),  65  Pac.  580.  In  the  latter 
case  it  is  said:  "While  void  proceed- 
ings cast  no  cloud  upon  title  to  real 
estate,  and  a  single  individual,  mov- 
ing only  in  his  own  behalf,  and  for 
his  own  purposes,  to  restrain  such 
proceedings,  will  be  remitted  to  his 
remedy  at  law,  yet  where  a  number 
of  persons  are  similarly  affected, 
and  the  rights  of  all  may  be  ad- 
justed in  one  proceeding,  a  court  of 
equity  will  assume  jurisdiction,  not- 
withstanding there  is  no  cloud  to 
remove,  and  the  ground  of  its  juris- 
diction is  the  prevention  of  a  multi- 
plicity of  suits.  [Citing  several 
cases,  and  Pom.  Eq.  Jur.,  §§  260, 
273.]  The  complaint  in  this  case 
shows  that  a  number  of  persons  are 
affected  by  the  same  assessment, 
and  that  to  determine  their  rights  at 
1—29 


law  would  require  as  many  suits  as 
there  are  individuals;  and  it  also 
shows  that,  while  they  have  no  com- 
mon ownership  in  the  property  af- 
fected by  the  assessment,  they  have 
a  community  of  interest  in  the  ques- 
tions of  law  and  fact  involved  in 
the  controversy;  and  upon  author- 
ity so  overwhelming  as  to  be  prac- 
tically unanimous,  the  case  is  one 
peculiarly  of  equitable  cognizance. 
See,  also,  Pom.  Eq.  Jur.,  §  269."  In 
Michael  v.  City  of  St.  Louis,  112 
Mo.  610,  20  S.  W.  666,  the  text  was 
approved,  but  it  was  held  by  the 
majority  of  the  court  that  the  com- 
plaint did  not  set  out  such  facts 
that  it  could  be  seen  from  the  face 
of  the  pleadings  that  the  questions 
of  law  to  be  decided  were  the  same 
as  to  all  the  plaintiffs.  See,  fur- 
ther, in  support  of  the  text,  Brizzo- 
lara  v.  City  of  Ft.  Smith,  87  Ark. 
85,  112  S.  W.  181;  Drainage  Com'rs 
Dist.  No.  2  v.  Kinney,  233  HI.  67, 
84  N.  E.  34;  Kvello  v.  City  of  Lis- 
bon (N.  D.),  164  N.  W.  305,  citing 
the  text;  Coleman  v.  Eathbun,  40 
Wash.  303,  82  Pac.  540. 


§  260  EQUITY   JURISPRUDElSrCE.  45D 

risdiction  has  been  carried  mucli  further.  In  a  large  num- 
ber of  the  states  the  rule  has  been  settled  in  well-considered 
and  often-repeated  adjudications  by  courts  of  the  highest 
character  for  ability  and  learning,  that  a  suit  in  equity  will 
be  sustained  when  brought  by  any  number  of  tax-payers 
joined  as  co-plaintiffs,  or  by  one  tax-payer  suing  on  behalf 
of  himself  and  all  others  similarly  situated,  or  sometimes 
even  by  a  single  tax-payer  suing  on  his  own  account,  to  en- 
diction."  The  argument  of  counsel  is  not  often  cited  as  authority.  But 
all  who  know  Mr.  Selden  will  agree  with  me  that  no  member  of  the  bar 
of  the  state  of  New  York  had  a  more  extensive  knowledge  of  or  a  greater 
familiarity  with  the  principles  of  equity  jurisprudence  and  jurisdiction 
than  he;  and  his  intellect  had  that  peculiar  integi'ity  which  would  not  per- 
mit him  to  maintain  as  counsel  any  legal  position  which  he  did  not  thor- 
oughly believe  as  a  lawyer.  I  esteem  his  opinion  as  a  very  strong 
evidence  in  support  of  the  equitable  jurisdiction  in  cases  of  this  kind. 
Scofield  v.  City  of  Lansing,  17  Mich.  437,  was  a  bill  filed  by  a  large  number 
of  owners  of  separate  lots  fronting  on  a  street,  to  enjoin  collection  of  an 
illegal  assessment,  which  was  declared  by  statute  to  be  a  lien  on  all  the 
lands  assessed.  Pronouncing  the  assessment  void,  the  court  held  that  the 
suit  could  be  sustained  on  the  ground  that  the  questions  to  be  decided  were 
common  to  all  the  plaintiffs,  and  it  prevented  a  multiplicity  of  suits.  City 
of  Lafayette  v.  Fowler,  34  Ind.  140,  in  which  the  facts  were  similar,  was 
decided  in  conformity  with  a  general  doctrine,  which,  as  we  shall  see,  is 
settled  in  that  state  with  reference  to  all  kinds  of  illegal  taxes,  assessments, 
and  public  burdens.  In  the  recent  cases  of  Kennedy  v.  City  of  Troy,  14 
Hun,  308,  312,  and  Clark  v.  Village  of  Dunkirk,  12  Hun,  181,  187,  upon 
facts  similar  to  those  in  the  Ireland  case,  the  supreme  court  of  New  York 
held  that  a  suit  by  one  lot-owner  suing  on  behalf  of  himself  and  all  others 
in  the  same  situation,  to  set  aside  an  illegal  assessment  which  was  made 
a  lien  on  their  lands,  would  be  sustained  on  the  express  ground  that  it 
came  within  the  familiar  jurisdiction  of  equity  to  grant  relief  for  the 
purpose  of  preventing  a  multiplicity  of  suits.  These  decisions  are  the 
more  emphatic  because  the  courts  of  New  York  had  previously  held  in 
many  cases  that  the  jurisdiction  did  not  extend  to  suits  brought  by  one 
or  by  many  tax-payers  to  be  relieved  from  ordinary,  general,  and  personal 
taxes  on  the  ground  of  their  illegality.  It  is  very  evident  that  the  proposi- 
tion stated  in  the  text  and  the  decisions  cited  in  this  note  would  be  fol- 
lowed, and  the  owners  of  lots  would  be  relieved  from  illegal  municipal 
local  assessments  in  all  those  states  where  the  courts  have  exercised  a  like 
jurisdiction  to  relieve  tax-payers  from  all  kinds  of  taxes  and  public 
burdens  which  axe  found  to  be  illegal. 


451  TO    PREVENT   A    MULTIPLICITY    OF    SUITS.  §  2G0 

join  tlie  enforcement  and  collection,  and  to  set  aside  and, 
annul,  any  and  every  kind  of  tax  or  assessment  laid  by 
county,  town,  or  city  authorities,  either  for  general  or 
special  purposes,  whether  it  be  entirely  personal  in  its  na- 
ture and  liability,  or  whether  it  be  made  a  lien  on  the  prop- 
erty of  each  taxpayer,  whenever  such  tax  is  illegal ;  and  in 
like  manner  to  set  aside  and  annul  any  and  every  illegal 
public  official  action  or  proceeding  of  county,  town,  or  city 
authorities,  whereby  a  debt  against  such  county,  town,  or 
city  would  be  unlawfully  created,  the  public  burden  upon  the 
community  would  be  unlawfully  enhanced,  and  the  amount 
of  future  taxation  would  be  unlawfully  increased;  as,  for 
example,  unlawful  proceedings  of  the  municipal  authorities 
to  advance  money  or  to  loan  the  public  credit  to  a  railroad, 
or  to  bond  the  municipality  in  aid  of  a  railroad,  or  to  offer 
and  pay  bounties  to  soldiers,  or  to  erect  public  buildings, 
and  numerous  other  analogous  proceedings  which  would 
necessarily  result  in  a  public  debt  and  in  taxation  for  its 
payment.*'  In  the  face  of  every  sort  of  objection  urged 
against  a  judicial  interference  with  the  governmental  and 
executive  function  of  taxation,  these  courts  have  uniformly 
held  that  the  legal  remedy  of  the  individual  tax-payer 
against  an  illegal  tax,  either  by  action  for  damages,  or  per- 
haps by  certiorari,  was  wholly  inadequate;  and  that  to  re- 
strict him  to  such  imperfect  remedy  would,  in  most  in- 
stances, be  a  substantial  denial  of  justice,  which  conclusion 
is,  in  my  opinion,  unquestionably  true.  The  courts  have 
therefore  sustained  these  equitable  suits,  and  have  granted 
the  relief,  and  have  uniformly  placed  their  decision  upon 
the  inherent  jurisdiction  of  equity  to  interfere  for  the  pre- 
vention of  a  multiplicity  of  suits.  The  result  has  demon- 
strated the  fact  that  complete  and  final  relief  may  be  given 
to  an  entire  community  by  means  of  one  judicial  decree, 
which  would  otherwise  require  an  indefinite  amount  of  sep- 

§  260,  (c)  Quoted  and  approved  in       County    Court,    26    W.    Va.   488,    53 
County  Court  v.  Boreman,  34  W.  Va.       Am.  Rep.  94. 

362,  368,  12  S.  E.  490;   Williams  v. 


§  2G0  EQUITY    JURISPRUDENCE.  452 

arate  litigation  by  individuals,  even  if  it  were  attainable 
by  any  means.^  ^    In  several  of  the  states  there  is  a  long 

§  260,  2  Cases  where  the  suit  was  by  a  number  of  tax-payers  as  co- 
plaintiffs,  or  by  one  suing  on  behalf  of  all  others:  Attorney-General  v. 
Heelis,  2  Sim.  &  St.  67,  76;  Newmeyer  v.  Missouri,  etc.,  R.  R.  Co.,  52  Mo. 
81,  84-89,  14  Am.  Rep.  391;  Rice  v.  Smith,  9  Iowa,  570,  576;  Stokes  v. 
Scott  Co.,  10  Iowa,  166 ;  McMillan  v.  Boyles,  14  Iowa,  107 ;  Rock  v.  Wal- 
lace, 14  Iowa,  593;  Ten  Eyck  v.  Keokuk,  15  Iowa.  486;  Chamberlain  v. 
Burlington,  19  Iowa,  395;  Williams  v.  Peinny,  25  Iowa,  436;  Hanson  v. 
Vernon,  27  Iowa,  28,  1  Am.  Rep.  215;  Zorger  v.  Township  of  Rapids,  36 
Iowa,  175,  180 ;  Board  of  Commissioners  v.  Brown,  28  Ind.  161 ;  Lafayette 
V.  Fowler,  34  Ind.  140;  Noble  v.  Vincennes,  42  Ind.  125;  Board  of  Com- 
missioners V.  Markle,  46  Ind.  96,  103-105;  Galloway  v.  Chatham  R.  R.  Co., 
63  N.  C.  147,  149,  150;  Brodnax  v.  Groom,  64  N.  C.  244,  246,  247;  Worth 
V.  Board  of  Commissioners,  1  Winst.  Eq.  70;  Vanover  v.  Davis,  27  Ga. 
354,  358;  Mott  v.  Pennsylvania  R.  R.  Co.,  30  Pa.  St.  9,  62  Am.  Dec.  664; 
Sharpless  v.  Philadelphia,  21  Pa.  St.  148,  59  Am.  Dec.  759;  Moers  v. 
Reading,  21  Pa.  St.  188;  Bull  v.  Read,  13  Gratt.  78,  86,  87;  Mayor  of 
Baltimore  v.  Gill,  31  Md.  375,  392-395;  Barr  v.  Deniston,  19  N.  H.  170, 
180;  Merrill  v.  Plainfield,  45  N.  H.  126,  134;  New  London  v.  Brainard,  22 
Conn.  552,  556,  557;  Webster  v.  Town  of  Harwinton,  32  Conn.  131,  140; 
Terrett  v.  Town  of  Sharon,  34  Conn.  105;  Scofield  v.  Eighth  School  Dis- 
trict, 27  Conn.  499,  504;  Colton  v.  Hanchett,  13  111.  615,  618;  Robertson 

§260,     (d)     Enjoining    Taxation;  All.  962,  2  Ames  Cas.  Eq.  Jur.  71; 

One  or  More  Plaintiffs  Suing  on  Be-  Quimby  v.   Wood,  19  R.  I.   571,   35 

half    of    All    Taxpayers.— The     au-  All.  149;  McClung  v.  Livesay,  7  W. 

thor's  and  editor's  notes  are  cited  in  Va.  329;  Doonan  v.  Board  of  Educa- 

fawker   v.    City   of   Milwaukee,   133  tion,    9   W.    Va.    246;    Corrothers    v. 

Wis.  35,  113  N.  W.  417.     The  conclu-  Board  of  Education,  16  W.  Va.  527; 

sions  of  the  text  are  supported  by  Williams  v.  County  Court,  26  W.  Va. 

the     following     cases:     Greedup     v.  488,  53  Am.  Eep.  94;  Blue  Jacket  v. 

Franklin  County,  30  Ark.  101 ;  Bode  Seherr,  50  W.  Va.  533,  40  S.  E.  514. 

V.    New   England  Inv.    Co.,    6    Dak.  See,  further,  the  recent  cases:  Drain- 

499,  42  N.   W.   658;   Knopf  v.  First  age   Com'rs    Dist.  No.   2  t.  Kinney, 

Nat.  Bk.,  173  111.  331,  50  N.  E.  660;  233   111.    67,    84   N.   E.    34;    Gray   v. 

City  of  Chicago  v.   Collins,   175   111.  Foster,  46   Ind.   App.   149,   92   N.  E. 

445,67  Am.  St.  Rep.  224,  49  L.  R.  A.  7;   City  of   Houston  v.  Baker   (Tex. 

408,  51  N.  E.  907;  German  Alliance  Civ.  App.),  178  S.  W.  820.    In  Texas, 

Assur.   Co,   T.   Van  Cleave,   191   111.  while   the   general   doctrine   appears 

410,   61   N.  E.   94;   Carlton   v.   New-  to  be  recognized,  injunction  will  not 

man,  77  Me.  408,  1  Atl.  194;  Clee  v.  lie    after    suits    have    already    been 

Sanders,  74  Mich.  692,  42  N.  W.  154;  begun   for   the    collection   of   taxes: 

Ranney  v.  Bader,  67  Mo.  476;  Sher-  McMickle   v.    Hardin,    25    Tex.    Civ. 

man  v.  Benford,  10  R.  I.  559;   Mc-  App.  222,  61  S.  W.  322.     In  Arkan- 

Twiggan  v.  Hunter,  18  R.  I.  776,  30  sas  the  jurisdiction  is  now  expressly 


453  TO    PREVENT    A    MULTIPLICITY    OF    SUITS.  §  260 

series  of  these  cases,  extending  through  a  considerable 
period  of  time,  and  it  may  well  happen  that  in  the  earliest 

V.  City  of  Rockford,  21  111.  451;  Perkins  v.  Lewis,  24  111.  208;  Butler  v. 
Dunham,  27  111.  474;  Drake  v.  Phillips,  40  111.  3S8,  393;  Vieley  v.  Thomp- 
son, 44  111.  9,  13;  Allison  v.  Louisville  etc.  R.  R.  Co.,  9  Bush,  247,  252; 
Lane  v.  Schomp,  20  N.  J.  Eq.  82,  89 ;  Noesen  v.  Port  Washington,  37  Wis. 
168. 

Cases  where  the  suit  was  hy  only  one  tax-payer,  purporting  to  sue  for 
himself  alone:  Board  of  Commissioners  v.  Templeton,  51  Ind.  266;  Board 
of  Commissioners  v.  McClintock,  51  Ind.  325,  328;  Board  of  Commission- 
ers V.  Markle,  46  Ind.  96,  103-105;  Lafayette  v.  Cox,  5  Ind.  38;  Nill  v. 
Jenkinson,  15  Ind.  425;  Coffman  v.  Keightley,  24  Ind.  509;  Oliver  v. 
Keightley,  24  Ind.  514;  Nave  v.  King,  27  Ind.  356;  Board  of  Commis- 
sioners V.  McCarty,  27  Ind.  475 ;  Harney  v.  Indianapolis  etc.  R.  R.  Co.,  32 
Ind.  244,  247,  248;  English  v.  Smock,  34  Ind.  115,  7  Am.  Rep.  215;  Will- 
iams V.  Peinny,  25  Iowa,  436 ;  Hanson  v.  Vernon,  27  Iowa,  28,  1  Am.  Rep. 
215;  Zorger  v.  Township  of  Rapids,  36  Iowa,  175,  180;  Merrill  v.  Plain- 
field,  45  N.  H.  126,  134;  Webster  v.  Town  of  Haminton,  32  Conn.  131, 
140 ;  Terrett  v.  Town  of  Sharon,  34  Conn.  105 ;  Prettyman  v.  Supervisors, 
19  lU.  406,  71  Am.  Dec.  230;  Clarke  v.  Supervisors,  27  111.  305,  311;  Tay- 
lor v.  Thompson,  42  111.  9;  Cleghorn  v.  Postlewaite,  43  111.  428,  431;  Vieley 

conferred  by  the  Constitution,  1874,  to  stop  in  a  single  suit  in  equity; 
art.  16,  §13:  Little  Eock  v.  Prather,  we  have  no  means  of  ascertaining 
46  Ark.  471;  Taylor  v.  Pine  Bluff,  the  number  of  tax-payers  in  Frank- 
34  Ark.  603;  Little  Eock  v.  Barton,  lin  county,  but  may  suppose  that 
33  Ark.  436;  but  was  recognized  they  exceed  two  thousand.  Of  these 
previously:  Greedup  v.  Franklin  perhaps  five  hundred  may  be  able  to 
County,  30  Ark.  109.  The  necessity  assert  their  rights  at  law,  whilst  fif- 
of  the  jurisdiction  was  stated  with  teen  hundred,  who  pay  less  tax,  are 
great  force,  in  the  case  last  cited:  in  moderate  circumstances  or  too 
"These  plaintiffs  have  sued  in  be-  poor  to  employ  counsel  to  stop  the 
half  of  themselves  and  of  the  other  payment  of  an  erroneous  tax  ten 
tax-payers  of  the  county;  this  they  times  less  than  it  would  cost  to  em- 
may  do  in  a  court  of  equity.  But  ploy  counsel  to  prosecute  their  suit, 
suppose  we  send  them  back  to  a  The  mere  suggestion  of  the  situ?i- 
court  of  law,  to  assert  their  rights;  tion,  if  left  to  redress  at  law,  shows 
we  know  that  at  the  common  law  that  it  in  effect  would  amount  to 
there  can  be  no  combination  of  par-  a  denial  of  redress  to  offer  it  to 
ties;  each  tax-payer  must  sue  in  his  them.  In  such  cases  chancery  will 
own  right  to  recover  the  tax  errone-  interfere  to  prevent  multiplicity  of 
ously  assessed  against  him.  What  suits."  Eanney  v.  Bader,  67  Mo. 
a  multiplicity  of  suits  at  law  must  47(5,  480,  by  Norton,  J.:  "Equity 
be  brought,  in  order  to  get  redress  will  maintain  jurisdiction  to  prevent 
for  one  injury  which  it  is  proposed  multiplicity  of  suits,  and  no  stronger 


§260 


EQUITY    JURISPRUDENCE. 


454 


decisions  of  such  a  series  the  court  has  stated  the  reasons 
for  its  judgment  at  large,  and  has  expressly  announced  the 
principle  of  preventing  a  multiplicity  of  suits  as  the  ground 

V.  Thompson,  44  111.  9,  13 ;  Allison  v.  Louisville  etc.  R.  R.  Co.,  9  Bush,  247, 
252. 

It  should  be  observed  that  all  of  this  latter  group  of  cases  arose  in 
states  where  the  courts  had  already  decided  that  a  suit  by  many  tax-payers 
joined  as  plaintiffs,  or  by  one  suing  on  behalf  of  the  others,  would  be  sus- 
tained on  the  ground  of  preventing  a  multiplicity  of  suits,  and  they  re- 
garded a  suit  by  one  tax-payer  alone  as  substantially  the  same  in  its  effect, 
and  treated  it  in  the  same  manner,  citing  the  same  precedents  indiscrimin- 
ately in  support  of  one  or  the  other  form.  Indeed,  in  many  of  these  latter 
cases,  the  court  expressly  said  that  the  suit  might  be  brought  in  either 
form,  by  many  tax-payers  joining  as  plaintiffs,  by  one  suing  on  behalf 


case  could  be  put  for  entertaining 
jurisdiction  under  this  rule,  than  13 
presented,  when  one  tax-payer  for 
himself  and  all  other  tax-payers  of  a 
township  or  county,  similarly  inter- 
ested, brings  his  bill,  asking  the 
chancellor  to  put  forth  restraining 
process  to  prevent  the  imposition 
end  collection  of  an  authorized  tax^ 
and  thus  settle  in  one  suit,  what  it 
would  take  hundreds  and,  perhaps, 
thousands  to  do,  if  such  relief  were 
denied,  and  the  parties  subjected  to 
the  payment  of  such  tax  were 
driven,  each  one,  to  his  action  at 
law  for  redress."  In  Carlton  v. 
Newman,  77  Me.  408,  1  Atl.  194,  the 
conclusions  of  the  author  with  re- 
Bpect  to  the  third  and  fourth  classes 
are  approved  and  supported  by 
quotations  from  many  of  the  au- 
thor's cases,  and  from  Woodruff  v. 
North  Bloomfield  G.  M.  Co.,  8  Sawy. 
628,  16  Fed.  25,  and  Cummings  v. 
Nat.  Bank,  101  TJ.  S.  157.  The 
court  says,  by  Virgin,  J.:  "More- 
over, it  is  generally  held  that  a  bill 
to  restrain  the  collection  of  a  tax 
cannot  be  maintained  on  the  sole 
ground  of  its  illegality.  .  .  . 
There  must  be  some  allogation  pre- 


senting a  case  of  equity  jurisdiction. 
.  .  .  But  we  are  of  the  opinion 
that  when  it  appears  that  an  entire 
school  district  tax  is  illegal  because 
assessed  without  authority  of  law,  a 
bill  to  enjoin  its  collection  brought 
by  all  of  the  tax-payers  of  the  dis- 
trict jointly  on  whose  polls  and  es- 
tates the  tax  has  been  assessed,  or 
by  any  number  thereof  on  behalf  of 
themselves  and  all  the  others  simi- 
larly situated,  may  be  sustained 
upon  the  ground  of  the  inherent 
jurisdiction  of  equity  to  interpose 
for  the  purpose  of  preventing  a 
multiplicity  of  suits;  that  although 
each  tax-payer  has  some  legal  rem- 
edy, it  is  grossly  inadequate  when 
compared  with  the  comprehensive 
and  complete  relief  afforded  by  a 
single  decree."  Knopf  v.  First  Nat. 
Bank,  173  HI.  331,  50  N.  E.  660,  by 
Cartwright,  J.:  "In  a  ease  where  a 
proposed  tax  is  illegal,  complete  re- 
lief may  be  given  to  thousands  of 
tax-payers  by  one  decree,  which 
would  otherwise  require  an  indefi- 
nite number  of  suits  by  different 
tax-payers  who  all  have  the  same 
remedial  right,  and  where  the 
threatened  tax   would  be   an   injury 


455 


TO   PREVENT   A   MULTIPLICITY   OP   SUITS. 


§260 


of  its  jurisdiction,  while  in  the  succeeding  ones  the  judges 
have  not  thought  it  necessary  to  repeat  the  reasons  and 

of  the  others,  or  by  one  suing  alone.    No  distinction  in  principle  was 
made  between  the  three.® 

The  case  of  Attorney-General  v.  Heelis,  2  Sim.  &  St.  67,  76,  is  important, 
since  it  shows  that  the  doctrine  was  applied  in  exactly  the  same  manner, 
under  exactly  analogous  circumstances,  by  an  English  court  of  equity.  A 
rate  had  been  laid  on  a  parish  which  was  claimed  to  be  illegal.  The  court 
held  that  as  the  inhabitants  of  the  parish  have  a  common  interest  to  avoid 
the  rate  (i.  e.,  a  local  tax),  any  one  or  more  of  them  may  sue  oii  behalf 
of  himself  and  the  other  inhabitants  to  enjoin  the  enforcement  of  the  rate. 
Newmeyer  v.  Missouri  etc.  R.  R.  Co.,  52  Mo.  81,  84-89,  is  an  instructive 


to  aU  alike.  It  is  the  only  method 
of  doing  substantial  justice  by  re- 
lieving the  whole  body  of  tax- 
payers, where  each  of  them  must 
otherwise  maintain  an  action  at  the 
same  time  and  on  the  same  ground" 
reviewing  the  Illinois  cases.  In 
Williams  v.  County  Court,  26  W.  Va 
488,  53  Am.  Rep.  94,  the  whole  sub 
ject  was  most  exhaustively  dis 
cussed,  the  author's  cases  re-exam 
ined,  and  his  conclusions  adopted 
save  in  a  minor  point  which  la 
noticed  below,  note  (e). 

For  tax  cases  of  the  author's 
fourth  class,  see  jios^t  §  261,  note  b. 
Class  Fourth,  (I),  (b);  of  the  sec- 
ond class,  see  ante,  §  253,  notes  2  and 
(c). 

Relief  Against  Acts  of  Municipal 
Corporations  Whereby  Public  Bur- 
dens are  Unlawfully  Increased. — 
The  author's  treatment  of  this  sub- 
ject is  mentioned  with  approval  in 
Allen  v.  Intendant,  etc.,  of  La  Fay- 
ette, 89  Ala.  641,  9  L.  R.  A.  497,  8 
South.  30;  Macon,  etc.,  R.  E.  Co.  v. 
Gibson,  85  Ga.  1,  21  Am.  St.  Rep. 
135,  11  S.  E.  442;  County  Court  v. 
Boreman,  34  W.  Va.  362,  363,  12 
S.  E.  490,  and  in  Dillon  on  Munici- 
pal Corporations  (4th  ed.),  §  922, 
note.  The  jurisdiction  of  equity  to 
interfere  in  such  cases  on  behalf  of 


the  tax-payer  is  hardly  questioned 
at  the  present  day.  See  Pom.  Eq. 
Rem.  Comparatively  few  of  the  in- 
numerable recent  cases  which  illus- 
trate this  jurisdiction  have  inquired 
into  its  grounds;  but  the  rationale 
of  the  doctrine  advanced  by  Judge 
Dillon  has  frequently  received  the 
sanction  of  the  courts,  viz.,  that  the 
relation  of  the  inhabitants  of  a 
municipality  to  its  governing  body, 
for  the  purposes  of  equitable  juris- 
diction, is  analogous  to  that  of  the 
stockholders  of  a  private  corpora- 
tion to  its  board  of  directors.  It 
is  plain,  however,  that  this  analogy 
is  not  a  perfect  one. 

Injunction  against  the  enforce- 
ment of  an  invalid  municipal  ordi- 
nance affecting  many  persons.  See 
post,  §  261,  note  b.  Class  Third,  (I), 
(b). 

§260,  (e)  Quoted,  Williams  v. 
County  Court,  26  W.  Va.  488,  501, 
53  Am.  Rep.  94.  The  author's  and 
editor's  notes  are  cited  in  Cawker 
v.  City  of  Milwaukee,  133  Wis.  35, 
113  N.  W.  417.  In  West  Virginia 
the  suit  must  be  expressly  in  behalf 
of  all  the  tax-payers:  Id.;  McClung 
v.  Livesay,  7  W.  Va.  329;  Doonan 
v.  Board  of  Education,  9  W.  Va. 
246;  Blue  Jacket,  etc.,  Co.  v.  Schorr, 
50  W.  Va.  533,  40  S.  E.  514.     Com- 


§  260  EQUITY    JURISPRUDENCE.  456 

ground  which  had  already  been  fully  explained.*  It  is  plain 
that  the  latter  cases,  no  less  than  the  former  ones,  are  an 
authority  for  the  doctrine  under  examination.  In  all  these 
suits  by  lot-owners  to  be  relieved  from  a  local  assessment, 
and  by  tax-payers  to  be  relieved  from  a  tax  or  burden  of 
public  debt,  there  is  no  pretense  of  any  privity,  or  existing 

case.  Being  recent,  the  court  had  before  it  a  large  number  of  decisions, 
all  the  leading  ones  in  -which  the  jurisdiction  had  been  denied,  as  well  as 
those  in  which  it  had  been  sustained.  Its  examination  of  these  authorities 
was  very  full.  The  plaintiffs  sued  for  themselves  and  all  other  tax-payers 
in  the  county  of  Macon,  as  owners  of  separate  property,  real  and  personal, 
to  set  aside  a  resolution  or  order  of  the  county  officials  subscrilnng  one 
hundred  and  seventy-five  thousand  dollars  to  the  stock  of  the  railroad,  and 
to  have  the  bonds  issued  by  the  county  for  the  said  amount  canceled,  on 
the  ground  that  the  whole  proceeding  was  illegal,  and  would  unlawfully 
increase  taxation.  The  suit  was  sustained  and  the  relief  granted.  In 
Lane  v.  Schomp,  20  N.  J.  Eq.  82,  89,  which  was  also  a  suit  on  behalf  of 
the  tax-payers  of  a  town  to  prevent  an  unlawful  bonding  of  the  town,  the 
chancellor  of  New  Jersey  expressly  held  that  the  case  was  not  controlled 
by  the  principle  asserted  in  some  decisions,  and  particularly  described 
hereafter,  that  where  an  individual  has  suffered  some  injury  from  a  public 
act,  in  coumion  with  all  members  of  the  same  community  or  local  district, 
he  has  no  cause  of  action  or  remedial  right  enforceable  in  any  court  of 
justice. 

pare  Knopf  v.  First  Nat.  Bank,  173  not,  in  set  phrase,  purport  to  be  on 
111.  331,  50  N.  E.  660:  "The  right  of  behalf  of  all  others  having  iiidi- 
each  one  is  individual  and  separate,  vidual  and  separate  interests  of  the 
but  the  common  relation  has  been  same  character." 
deemed  sufficient  to  authorize  the  It  has  not  seemed  necessary  to 
exercise  of  the  power  of  equity  add  to  the  author's  citation  of  cases 
either  where  the  suit  is  by  a  num-  from  those  states — Illinois,  Indiana, 
ber  of  tax-payers  on  behalf  of  them-  Iowa,  etc. — which  permit  the  injunc- 
selves  and  others  similarly  situated,  tion  of  illegal  taxation  at  the  suit 
or  by  one  suing  on  behalf  of  all  of  the  single  plaintiff  on  the  mere 
others,  or  even  where  the  suit  is  by  ground  of  its  illegality.  For  a  fur- 
one  suing  for  himself  alone,  where  ther  discussion  of  equitable  relief 
the  effect  would  be  to  settle  the  against  taxation,  and  a  statement 
rights  of  all.  In  this  case  the  suit  of  the  varying  rules  established  in 
is  to  maintain  the  rights  of  the  the  different  states,  see  Pom.  Eq. 
stockholders    [of   the   plaintiff],   but  Eem. 

the  necessary  effect  is  to  determine  §  260,     (f )     Quoted,     Williams     v. 

the  right   of  every  tax-payer  in  the  County  Court,  26  W.  Va.  488,  502,  53 

district,  and  it  would  be  an   irrele-  Am.  Rep.  94. 
vant   distinction   that   the   bill   does 


457  TO   PREVENT   A    MULTIPLICITY    OF    SUITS.  §  261 

legal  relation,  or  common  property  or  other  right,  among 
the  plaintiffs  individually,  or  between  them  as  a  body  and 
the  defendant.  There  is  no  common  right  of  the  single  ad- 
versary party  against  them  all,  as  is  found  in  the  case  of  a 
parson  against  his  parishioners  for  tithes,  or  of  the  lord 
of  a  manor  against  his  tenants  for  a  general  fine,  or  for 
certain  rights  of  common;  nor  is  there  any  common  right 
or  interest  among  them  against  their  single  adversary. 
The  only  community  among  them  i^  in  the  questions  at  issue 
to  be  decided  by  the  court;  in  the  mere  external  fact  that 
all  their  remedial  rights  arose  at  the  same  time,  from  the 
same  wrongful  act,  are  of  the  same  kind,  involve  similar 
questions  of  fact,  and  depend  upon  the  same  questions  of 
law.g  This  sort  of  community  is  sufficient,  in  the  opinion 
of  so  many  and  so  able  courts,  to  authorize  and  require  the 
exercise,  under  such  circumstances,  of  the  equitable  juris- 
diction, in  order  to  prevent  a  multiplicity  of  suits. 

§261.    Other  Special  Cases  of  the  Third  and  Fourth 

Classes.^ — There  are  some  other  cases,  belonging  to  the 
third  or  fourth  of  my  general  classes,  which  present  a 
special  condition  of  facts,  and  do  not  admit  of  being  ar- 
ranged in  either  of  the  foregoing  groups.  I  have  placed 
them  in  the  f  oot-note.^  ^ 

§261,  IBrinkerhoff  v.  Brown,  6  Johns.  Ch.  139,  151,  156;  New  York 
&  N.  H.  R.  R.  V.  Schuyler,  17  N.  Y.  592,  599,  600,  605-608,  34  N.  Y.  30, 
44-46;  but  see  County  of  Lapeer  v.  Hart,  Harr.  (Mich.)  157.  In  Brinker- 
hoff  V.  Brown,  6  Johns.  Ch.  139,  which  was  a  bill  by  a  number  of  individual 
judgment  creditors,  having  wholly  distinct  and  separate  judgments  and 
demands,  to  reach  the  property  of  their  common  debtor.  Chancellor  Kent 
said  (p.  151)  :  "The  plaintiffs  are  judgment  creditors  at  law,  seeking  the 

§260,    (g)    (Quoted  with  approval,  §261,    (b)   In  arranging   the  very 

Michael   v.   City   of   St.   Louis,    112  numerous    recent    cases    illustrating 

Mo.  610,  20  S.  W.  COG.  classes  third  and  fourth,  the  editor 

§261,  (a)  This  section  is  cited  in  has  collected,  in  each  class,  first, 
Enright  v.  Graut,  5  Utah,  334,  15  cases  where  the  prevention  of  a 
Pac.  268,  a  case  of  the  "third  class";  multiplicity  of  suits  was  the  sole 
also  in  City  of  Iloustou  v.  Kichter  ground  of  equitable  jurisdiction,  or 
(Tex.  Civ.  App.),  157  S.  "W.  189,  a  was  relied  on  by  the  court  as  an  in- 
case of  the  "third  class.''  dependent    ground    of    jurisdiction; 


§262 


EQUITY    JURISPRUDENCE. 


45S 


§  262.  Opposing  Decisions  Examined. — Thus  far  tlie  dis- 
cussion has  been  chiefly  confined  to  the  various  instances  in 
which  the  jurisdiction  has  been  established,  upheld,  and  con- 
firmed; I  now  proceed  to  consider  the  opposite  side  of  the 
question,  and  to  examine  those  groups  of  cases  in  which  the 

aid  of  this  court  to  render  their  judgments  and  executions  effectual  against 
certain  fraudulent  acts  of  their  debtor  equally  affecting  all  of  them.  The 
question  is,  whether  judgment  creditors,  whose  rights  are  established  and 
their  liens  fixed  at  law,  may  not  unite  in  a  bill  to  remove  impediments  to 
the  remedy  created  by  the  fraud  of  the  opposite  party.  It  is  an  ordinary 
case  in  this  court  for  creditors  to  unite,  or  for  one  or  more  on  behalf  of 
themselves  and  the  rest,  to  sue  the  representative  of  the  debtor  in  posses- 
sion of  the  assets,  and  to  seek  an  account  of  the  estate.  This  is  done  to 
prevent  a  multiplicity  of  suits,  a  very  favorite  object  with  this  court." 
And  at  page  156:  "A  bill  may  be  filed  against  several  persons  relative  to 
matters  of  the  same  nature,  forming  a  connected  series  of  acts,  and  all 
intended  to  defraud  and  injure  the  plaintiff,  and  in  which  all  the  defend- 
ants were  more  or  less  concerned,  though  not  jointly,  in  each  act."  This 
opinion  of  Chancellor  Kent  shows  that  the  uniting  of  numerous  distinct 
judgment  creditors  in  one  creditor's  suit  against  the  same  defendant,  or 
the  suing  by  one  such  creditor  for  himself  and  all  others,  which  has  now 
become  so  familiar  a  mode  of  obtaining  relief,  was  originally  permitted 
and  adopted  on  the  ground  of  preventing  a  multiplicity  of  suits.     This 


second,  cases  where  other  grounds  of 
jurisdiction  appear  to  exist,  and  the 
question  is  chiefly  one  of  joinder  of 
parties.  Cases  in  the  first  groups, 
of  course,  afford  stronger  proof  of 
the  existence  of  the  jurisdiction 
than  those  in  the  second.  In  some 
instances,  however,  it  is  difficult  to 
determine  to  which  group  the  case 
is  properly  assignable,  for  the  obvi- 
ous reason,  that  if  the  doctrine  is 
accepted  as  a  ground  of  jurisdiction, 
it  is  immaterial  to  the  court,  in  its 
decision  of  the  case,  whether  the 
separate  causes  of  action  consol- 
idated therein  are  legal  or  equitable 
in  their  nature;  see  a7ite,  notes  at 
end  of  §  257. 

Third  Class.  (I),  Cases  Where 
the  Multiplicity  of  Suits  Conferred 
Jurisdiction  or  Warranted  Its  Exer- 


cise.— (a)  Actions  at  Law  Against 
Numerous  Parties,  where  each  had 
the  same  defense,  enjoined:  Defend- 
ant, a  railroad,  claiming  certain 
land  under  a  land  grant  act,  brought 
or  threatened  to  bring  separate  ac- 
tions of  ejectment  against  the  plain- 
tiffs, who  were  in  possession  of 
separate  tracts  and  claimed  to  be 
owners  thereof  under  the  home- 
stead and  pre-emption  laws.  By 
Harlan^  J.:  "They  have  thus  a  com- 
munity of  interest  in  the  questions 
of  law  and  fact  upon  which  the  is- 
sue between  the  railroad  company 
and  each  plaintiff  depends.  The 
company's  claim  is  good  or  bad 
against  all  the  plaintiffs,  as  it  may 
be  good  or  bad  against  any  one  of 
them;  and  yet  a  judgment  in  favor 
of   one,   in   an   action    of   ejectment 


459  TO    PREVENT    A    MULTIPLICITY    OF    SUITS.  §  262 

jurisdiction  has  either  been  positively  denied  under  the 
same  circumstances  in  which  it  had  been  asserted  and  exer- 

faet  is  of  gi-eat  importance  in  illustrating  the  meaning  and  extent  of  that 
doctrine;  since  the  only  bond  of  union  among  the  separate  creditors  is 
their  community  of  interest  in  the  relief  demanded,  in  the  questions  at 
issue  and  decided  by  the  court.*  New  York  &  N.  H.  R.  R.  Co.  v.  Schuyler, 
17  N.  y.  592,  was  certainly  one  of  the  most  remarkable  actions  recorded 
in  the  annals  of  litigation.  Schuyler,  the  treasurer  of  a  railroad  com- 
pany, had  during  a  period  of  two  or  three  years  fraudulently  issued 
spurious  certificates  of  stock  of  the  company,  until  at  last  such  certificates 
were  scattered  among  about  one  hundred  bona  fide  holders.  Each  fraudu- 
lent issue  was  accomplished  by  a  similar  contrivance  and  similar  acts  of 
deception ;  but  each  was,  of  course,  an  entirely  distinct  and  separate  trans- 
action from  all  the  others.  The  railroad,  claiming  that  these  certificates 
were  null  and  void,  brought  this  suit  against  all  the  holders  for  the  pur- 
pose of  having  them  surrendered  up  and  canceled.  The  suit  was  sustained 
by  analogy  to  a  bill  of  peace,  in  an  elaborate  opinion  of  the  court  which 
is  too  long  for  quotation.  See  17  N.  Y.  592,  599,  600,  605-608,  34  N.  Y. 
30,  44-46.  Here  the  only  pretense  of  common  interest  among  the  certifi- 
cate-holders was  in  the  similar  questions  of  fact  and  the  same  question  of 
law  at  issue  upon  which  all  their  claims  depended;  there  was  no  common 
title  from  which  these  questions  sprung,  nor  any  community  of  interest 
in  the  subject-matter.  See,  also,  the  recent  and  strongly  analogous  case  of 
Sheffield  Water  Works  v.  Yeomans,  L.  R.  2  Ch.  8,  11;  ante,  note  to  §  256; 
and  Black  v.  Shreeve,  7  N.  J.  Eq.  440,  456,  457;  ante,  note  to  §  252;  and 
Board  of  Supervisors  v.  Deyoe,  77  N.  Y.  219,  225. 

brought  by  the  company,  would  not  similar  case  of  Lovett  t.  Prentice, 
avail  the  others  in  separate  actions  44  Fed.  459,  quoting  this  chapter, 
of  ejectment  against  them.  The  Suits  by  one  insured  against  numer- 
case  is  peculiarly  one  in  which  the  ous  insurance  companies  were  en- 
jurisdiction  of  a  court  of  equity  joined,  where  each  had  the  defense 
may  be  invoked  in  order  to  avoid  a  that  its  policy  was  obtained  by  the 
multiplicity  of  suits  [citing  Pom.  same  fraudulent  misrepresentations 
Eq.  Jur.,  §§  245,  255,  257,  268,  269,  of  the  insured:  Virginia-Carolina 
273].  The  fact  that  the  several  Chemical  Co.  v.  Home  Ins.  Co.,  113 
tracts  of  land  here  in  dispute  were  Fed.  1  (C.  C.  A.),  citing  this  chap- 
entered  at  different  dates,  and  by  ter,  S.  C,  109  Fed.  681;  see,  also, 
different  persons,  is  of  no  conse-  American  Cent.  Ins.  Co.  v.  Landau, 
quence,  as  the  validity  of  each  56  N.  J.  Eq.  513,  39  Atl.  400,  by  Pit- 
entry,  as   against  the  railroad   com-  ney,   V.    C,    quoting   or    citing   this 

pany,    depends    upon    precisely    the       . 

same    questions    of   law    and    fact":  §261,    (c)    The    author's    note    is 

Osborne  v.  Wisconsin  Central  R.  Co.,  cited  in  the  similar  case  of  Enright 

43  Fed.  824,  826,  827.     See,  also,  the  v.  Grant,  5  Utah,  340,  15  Pac.  270. 


§262 


EQUITY    JURISPRUDENCE. 


4G0 


cised  by  tlie  authorities  previously  quoted,  or  has  been  care- 


chapter  and  reviewing  many  cases: 
Rochester  German  lus.  Co,  v. 
Schmidt,  126  Fed.  998;  Tisdale  T. 
Insurance  Co.  of  North  America,  84 
Miss.  709,  36  South.  568.  To  the 
same  effect,  see  Dixie  Fire  Ins.  Co. 
V.  American  Confectionery  Co.,  124 
Tenn.  247,  34  L.  R.  A.  (N.  S.)  897, 
136  S.  W.  915,  with  exhaustive  re- 
view of  cases. 

(b)  Injunction  Against  the  En- 
forcement of  an  Invalid  Municipal 
Ordinance  affecting  many  persons. 
In  City  of  Chicago  v.  Collins,  175 
111.  445,  51  N.  E.  904,  2  Ames  Cas. 
Eq.  Jur.  92,  numerous  residents  and 
tax-payers  sued  in  behalf  of  them- 
selves and  all  others  similarly  sit- 
uated to  enjoin  the  enforcement  of 
an  ordinance  providing  for  the  pay- 
ment of  a  license  fee  on  vehicles. 
The  court,  quoting  §  245  of  the  text, 
and  upholding  the  injunction,  says 
in  part:  "In  this  case  three  hundred 
and  seventy-three  complainants  pre- 
sent facts  showing  that  between 
200,000  and  300,000  citizens  and  tax- 
payers are  affected  by  the  provi- 
sions of  the  ordinance,  and  if  com- 
pelled to  pay  the  illegal  tax,  hard- 
ship and  injustice  will  result  to  an 
enormous  number  of  persons.  If 
they  pay  the  tax  and  are  compelled 
to  resort  to  a  court  of  law  to  re- 
cover back  the  amount  so  paid,  the 
business  of  the  courts  will  be  ob- 
structed by  the  number  of  actions 
of  the  same  character.  Long  delay 
will  ensue,  and  the  costs  to  the  per- 
sons so  paying  such  illegal  tax  or 
license  fee  will  be  greater  than  the 
amount  to  be  recovered."  See,  also, 
the  similar  cases  of  Wilkie  v.  City 
of  Chicago,  188  111.  444,  80  Am.  St. 
Rep.  182,  58  N.  E.  1004;  and  the  re- 
cent cases:  Brizzolara  v.  City  of  Fort 
Smith,    87   Ark.   85,    112    S.    W.    181 


^ordinance  requiring  property  own- 
ers to  construct  sidewalks,  etc.;  rely- 
ing on  §§  255,  269  of  the  text); 
Grossman  v.  City  of  Indianapolis, 
173  Ind.  157,  88  N.  B.  945,  89  N.  E. 
262  (ordinance  regulating  business 
of  junk  dealers) ;  City  of  Houston  v. 
Eichter  (Tex.  Civ.  App.),  157  S.  W. 
189    (plumbers). 

(c)  Injunction  Against  Trespass, 
or  Other  Wrongful  Act  of  the  De- 
fendant, Affecting  Numerous  Plain- 
tiffs, where  each  suing  singly  might 
have  an  "adequate"  remedy  at  law: 
Suit  by  a  number  of  importers  of 
tea  which  was  about  to  be  destroyed 
by  the  collector  of  customs  under 
color  of  a  statute  alleged  by  the 
plaintiffs  to  be  unconstitutional. 
Though  damages  would  be  an  ade- 
quate compensation  to  each  plaintiff 
for  any  loss  which  he  would  sustain 
by  reason  of  the  destruction  of  the 
tea,  and  though  each  has  a  separate 
and  distinct  interest  in  the  tea,  they 
have  "a  common  interest  in  the 
question  whether  the  defendant  is 
authorized  by  law  to  destroy  such 
tea":  Sang  Lung  v.  Jackson,  85  Fed. 
502.  Numerous  owners  of  fishing 
interests  in  a  lake  united  in  a  suit 
to  enjoin  an  unauthorized  and  ille- 
gal act  of  certain  commissioners,  in 
opening  a  channel  between  the  lake 
and  the  ocean.  It  did  not  appear 
that  the  threatened  act  would  cause 
any  of  the  plaintiffs  such  damage  as 
to  justify  an  injunction  at  his  single 
suit.  "The  principal,  if  not  the 
only,  ground  upon  which  the  court 
can  properly  take  jurisdiction  in 
this  case  is  that  there  are  many 
parties  plaintiff,  all  of  whom,  as 
land-owners  on  Great  Pond,  have 
the  same  rights,  which  can  be  set- 
tled in  one  action  in  equity,  so  as 
to   avoid   a   multiplicity  of  suits   at 


461 


TO    PREVENT   A    MULTIPLICITY    OF    SUITS. 


§262 


fully  explained,  restricted,  and  limited  within  strict  and 


law.  Upon  that  ground  it  seems  to 
be  our  duty  to  determine  tlie  rights 
of  the  parties  in  this  form  of  pro- 
ceeding." Smith  V.  Smith,  148 
Mass.  1,  18  N.  E.  595,  2  Ames  Cas. 
Eq.  Jur.  64. 

An  interesting  illustration  of 
"class  third"  is  found  in  Breimeyer 
V.  Star  Bottling  Co.,  136  Mo.  App. 
84,  117  S.  W.  119.  This  was  a  suit 
to  enjoin  the  use  by  the  defendant, 
in  selling  its  beverages,  of  bottles 
belonging  to  numerous  unrelated 
plaintiffs,  bearing  their  respective 
trade  names.  Actions  at  law  to  re- 
cover the  bottles  or  their  value 
would  be  innumerable.  Avoidance  of 
a  multiplicity  of  suits  was  the  sole 
ground  of  jurisdiction. 

(d)  Injunction  Against  Breach  of 
Contract  affecting  numerous  parties. 
A  contract  by  a  city  with  a  gas  com- 
pany, authorizing  the  use  of  the 
city's  streets,  fixed  maximum  rates 
to  be  charged  its  inhabitants. 
Jurisdiction  of  a  suit  to  enjoin  en- 
forcement of  excessive  rates  was 
rested  chiefly  on  the  ground  of  the 
avoidance  of  a  multiplicity  of  suits 
by  the  inhabitants  against  the  gas 
company,  and  the  city  was  held  a 
proper  party  to  sue  as  representa- 
tive of  its  inhabitants.  Muncie 
Natural  Gas  Co.  v.  City  of  Muncie, 
160  Ind.  97,  66  N.  E.  436,  441,  citing 
this  chapter. 

(e)  Cancellation  in  Favor  of  Nu- 
merous Plaintiffs. — Promissory  notes 
were  obtained  from  fifty-seven  per- 
sons by  the  defendant's  same  fraud- 
T-ilent  misrepresentation.  A  suit  by 
these  persons  to  cancel  their  several 
notes  was  sustained,  jurisdiction  be- 
ing rested  on  the  grounds  main- 
tained by  the  author.  Ilightower  v. 
Mobile,  J.  &  K.  C.  E.  R.  Co.  (Miss.), 
36  South.  82.     The  situation  here  is 


the  converse  of  that  stated  post,  in 
this  note,  Class  Fourth  (e).  So, 
where  a  number  of  persons  had 
guaranteed  a  note,  each  in  a  sep- 
arate amount,  and  all  relied  on  a 
common  defense  to  defeat  recovery 
on  the  note,  they  were  permitted  to 
join  in  a  suit  to  cancel  the  note: 
Webb  V.  Cope  (Mo.),  192  S.  W.  934, 
citing  §  269  of  the  text. 

(f)  Pecuniary  Relief  to  Numerous 
Plaintiffs.— In  Smith  v.  Bank  of 
New  England,  G9  N.  H.  254,  45  Atl. 
1082,  2  Ames  Cas.  Eq.  Jur.  79,  the 
holders  of  numerous  certificates  of 
deposit  were  permitted  to  join  in  an 
action  charging  the  defendants  with 
a  negligent  breach  of  trust  affecting 
them  all  alike,  although  each  plain- 
tiff might  maintain  his  action  at 
law  for  damages;  since  the  "ques- 
tion of  the  defendant's  negligence 
would  be  exactly  the  same  in  all  the 
actions  and  would  necessarily  be  de- 
termined upon  the  same  evidence." 
See  extract  from  the  opinion  of  the 
court,  post,  §  267,  note.  See,  also, 
the  somewhat  similar  case  of  Boyd 
V.  Schneider  (C.  C.  A.),  131  Fed. 
223,  reversing  124  Fed.  239,  and  re- 
lying on  the  author's  text,  §  245 
(suit  by  numerous  depositors  in 
bank  against  negligent  directors). 
See,  further,  the  recent  cases:  Slater 
Trust  Co.  v.  Randolph  Macon  Coal 
Co.,  166  Fed.  171  (suit  by  bond- 
holder in  behalf  of  himself  and 
others  against  directors  for  fraud 
in  inducing  purchase  of  bonds); 
Blumer  v.  Ulmer  (Miss.),  44  South. 
161  (suit  by  several  depositors 
against  directors  of  a  bank  for  de- 
ceit in  inducing  deposits  when  the 
bank  was  insolvent;  the  cause  of  ac- 
tion of  each  depositor  individually 
being  purely  legal).  In  Washington 
County   V.   Williams,    111   Fed.    801, 


S262 


EQUITY    JURISPRUDENCE. 


462 


narrow  bounds.    I  shall  follow  the  same  order  as  before, 


49  C.  C.  A.  621,  numerous  separate 
owners  of  a  certain  issue  of  county 
bonds  joined  in  a  suit  to  have  their 
validity  established  and  a  part  pay- 
ment of  the  sums  due  on  each  made 
from  the  fund  in  the  county  treas- 
ury. It  was  held  in  the  dissenting 
opinion  of  Sanborn,  Cir.  J.,  that 
since  the  "only  point  of  litigation  is 
a  common  one,"  viz.,  whether  or  not 
the  issue  of  the  bonds  was  author- 
ized by  the  statutes  of  Nebraska, 
and  since  "the  complainants'  rights 
and  causes  of  action  arise  from  a 
common  source — from  the  act  of  the 
county  in  issuing  the  bonds,  .  .  . 
involve  similar  facts  .  .  .  are  gov- 
erned by  the  same  legal  rules  .  ,  . 
the  case  falls  far  within  the  familiar 
rule  which  has  been  quoted  from 
Pomeroy";  citing  the  text,  §§  245, 
255,  257,  268,  269,  273.  For  the  de- 
cision of  the  majority  of  the  court, 
distinguishing  the  case  from  the 
operation  of  the  principle,  see  post, 
§  267,  note. 

The  principle  of  the  "third  class" 
has  sometimes  been  invoked  in  sup- 
port of  a  suit  by  numerous  plaintiffs 
claiming  to  share  ratably  in  a  fund 
of  limited  amount;  Pennefeather  v. 
Baltimore  Steam  Packet  Co.,  58  Fed. 
481,  quoting  §  245  of  the  text.  But 
there  seems  to  be  here  some  miscon- 
ception as  to  the  particular  doctrine 
discussed  by  the  author.  It  is  true 
that  in  cases  like  the  one  last  men- 
tioned the  jurisdiction  depends  in 
part  upon  the  existence  of  several 
plaintiffs,  but  its  exercise  does  not 
depend  on  the  existence  in  favor  of 
each  plaintiff  of  the  same  question 
of  fact  or  of  law.  Each  plaintiff's 
right  may  be,  not  merely  distinct, 
but  different,  and  require  a  separate 
issue  for  its  establishment.  Indeed; 
the  cases  in   question   present  little. 


if  any,  analogy  with  bills  of  peace. 
The  jurisdiction  is  exercised  because 
of  the  difficulty  or  impossibility  of 
effecting  an  apportionment  of  the 
fund  in  separate  suits  at  law.  See 
Snowden  v.  General  Dispensary,  60 
Md.  85,  and  the  recent  case,  Guf- 
fanti  V.  National  Surety  Co.,  196 
N.  Y.  452,  134  Am.  St.  Rep.  848,  90 
N.  E.  174,  quoting  §  269  of  the  text. 
Familiar  illustrations  are  found  in 
suits  by  creditors  of  a  corporation 
to  enforce  the  liability  of  the  direc- 
tors or  stockholders  for  its  debts, 
where  that  liability  is  limited  in 
amount,  and  is  treated  as  a  fund  for 
the  benefit  of  all  the  creditors. 
Bauer  v.  Piatt,  72  Hun,  326,  25  N. 
Y.  Supp.  426;  Pfohl  v.  Simpson,  74 
N.  Y.  137;  Barton  Nat.  Bank  v.  At- 
kins, 72  Vt.  33,  47  Atl.  176. 

II.  Joinder,  Where  Each  of  the 
Numerous  Plaintiffs  has  an  Equi- 
table Cause  of  Action. — In  addition 
to  the  class  of  cases  described  above, 
§  257,  see  the  following  analogous 
cases:  In  the  states  where  the  ille- 
gality of  a  tax  clouding  the  plain- 
tiff's title  is  a  ground  for  enjoining 
its  collection  at  the  suit  of  a  single 
plaintiff,  owners  of  separate  tracts 
who  are  alike  affected  by  the  illegal- 
ity may  unite  as  plaintiffs:  Bobbins 
V.  Sand  Creek  T.  Co.,  34  Ind.  461; 
Brandriff  v.  Harrison  Co.,  50  Iowa, 
164;  Thomas  v.  Moore,  120  Mich. 
535,  79  N.  W.  812;  Bull  v.  Read,  13 
Gratt.  79.  Numerous  foreign  insur- 
ance companies  affected  by  the  act 
of  the  insurance  commissioner  in 
threatening  to  revoke  their  licenses 
to  do  business  may  join  in  an  action 
for  an  injunction,  on  account  of 
their  common  interest  in  the  ques- 
tion involved;  Liverpool  &  L.  &  G. 
Ins.  Co.  V.  Clunie,  88  Fed.  160,  167, 
citing    this    chapter.     Other    injunc- 


463 


TO    PREVENT    A    MULTIPLICITY    OF    SUITS. 


§262 


arranging  all  the  cases  in  the  four  classes  described  in  a 
preceding  paragraph. 


tion  cases:  A  board  of  education 
^yas  enjoined  from  excluding  from 
school,  on  the  ground  of  non-resi- 
dence, the  inmates  of  an  orphan 
asylum,  the  case  of  each  plaintiff 
presenting  the  same  questions  of 
law  and  fact:  Ashley  v.  Board  of 
Education,  275  111.  274,  114  N.  E. 
20.  The  several  lot-owners  in  a 
cemetery  having  a  common  interest 
in  its  decent  and  proper  mainte- 
nance, one  may  sue  in  behalf  of  all 
where  an  injury  is  threatened  to  the 
cemetery  and  the  monuments  and 
dead  bodies  therein:  Chew  v.  First 
Presbyterian  Church  of  Wilmington, 
237  Fed.  219,  quoting  §  245  of  the 
text.  A  number  of  railroads,  each 
of  which  is  threatened  with  re- 
peated actions  for  recovery  of  a 
statutory  penalty  for  its  failure  to 
display  on  a  bulletin-board  the  times 
of  the  arrival  and  departure  of 
trains,  may  join  in  a  suit  to  enjoin 
these  actions:  Guice  v.  Illinois  Cen- 
tral E.  Co.,  Ill  Miss.  36,  71  South. 
259.  Several  persons  who  by  the 
same  fraudulent  misrepresentations 
are  induced  to  subscribe  for  stock  in 
a  corporation  may  join  in  an  action 
to  set  aside  their  subscriptions  and 
recover  moneys  paid  thereon;  Bosher 
V.  Eichmond  H.  Land  Co.,  89  Va. 
455,  37  Am.  St.  Eep.  879,  16  S.  E. 
360,  citing  §  269  of  the  text;  Carey 
V.  Coffee-Stemming  Mach.  Co.  (Va.), 
20  S.  E.  778,  citing  §  269  of  the  text; 
Hamilton  v.  American  Hulled  Bean 
Co.,  143  Mich.  277,  106  N.  W.  731 
(said  to  be  immaterial  whether  the 
representations  are  made  to  the 
prospective  shareholders  at  the  same 
time  or  to  them  separately  at  dif- 
ferent times,  provided  the  repre- 
sentations are  identical) ;  so,  two 
plaintiffs  who  were  induced  by   the 


same  fraud  to  sell  their  stock  may 
join  in  a  bill  to  rescind  the  sale; 
Bradley  v.  Bradley,  165  N.  Y.  183, 
58  N.  E.  887;  citing  this  chapter  and 
many  cases.  Joinder  of  plaintiffs 
deriving  title  from  a  common  source 
in  a  suit  to  quiet  title;  Prentice  v. 
Duluth  Storage  Co.,  58  Fed.  437;  or 
to  remove  a  cloud  on  their  title;  Dart 
v.  Orme,  41  Ga.  376.  Wliere  the  re- 
cording of  a  quitclaim  deed  would 
cast  a  cloud  on  the  title  of  hundreds 
of  land-owners,  one  plaintiff  was  per- 
mitted to  bring  a  suit  in  behalf  of 
all,  in  Tucker  v.  Wadlow  (Mo.),  184 
S.  W.  69.  Joinder  in  a  creditor's 
bill  of  plaintiffs  who  have  recovered 
separate  judgments  against  their 
common  debtor;  Sheldon  v.  Packet 
Co.,  8  Fed.  769  (Harlan,  J.);  En- 
right  v.  Grant,  5  Utah,  334,  15  Pae. 
268,  citing  note  to  this  section.  Bill 
by  all  the  creditors  of  an  insolvent, 
Or  some  in  behalf  of  the  rest,  to  en- 
force a  trust;  Libby  v.  Norris,  142 
Mass.  246,  7  N.  E.  919.  Bill  by  one 
bondholder  in  behalf  of  others  to 
enforce  a  trust  under  a  reorganiza- 
tion agreement;  Indiana,  I.  &  I.  E. 
Co.  V.  Swannell,  157  111.  616,  30 
L.  E.  A.  290,  297,  41  N.  E.  989,  cit- 
ing §  269  of  the  text.  Stockholders 
in  a  corporation  were  allowed  to 
join  in  an  action  for  equitable  re- 
lief, where  the  majority  were  pur- 
suing an  illegal  course,  although 
their  interests  in  the  subject-matter 
of  the  litigation  were  separate,  and 
not  joint;  Barr  v.  N.  T.,  etc.,  E.  E. 
Co.,  96  N.  Y.  444.  One  or  more 
stockholders  of  a  mutual  insurance 
company  may  on  behalf  of  all  bring 
a  suit  to  set  aside  the  appointment 
of  an  assignee,  and  to  cancel  assess- 
ments, and  for  other  relief.  Corey 
v.  Sherman,  96  Iowa,  114,  32  L.  E.  A. 


§263 


EQUITY   JURISPRUDENCE. 


464 


§  263.    In  the  First  and  Second  Classes. — As  tlie  doctrine 


490,  509,  64  N.  W.  828',  quoting  §  2G9 
of  the  text. 

Class  Fourth.  (I)  Cases  Where 
the  Avoidance  of  a  Multiplicity  of 
Suits  Conferred  Jurisdiction  or  War- 
ranted Its  Exercise. — (a)  Injunction 
Against  Numerous  Defendants  Pros- 
ecuting Suits  at  Law. — Sundry  own- 
ers of  property  abutting  on  a  street 
occupied  by  the  tracks  of  the  com- 
plainant railroad  brought  suits  at 
law  for  damages  resulting  to  them 
from  the  construction  and  operation 
of  the  railroad,  claiming  that  it  was 
a  mere  trespasser  in  the  street.  The 
complainant,  asserting  a  charter 
from  the  state  to  occupy  the  street, 
brought  an  action  in  the  nature  of  a 
bill  of  peace  to  enjoin  these  suits 
and  determine  its  rights;  the  bill 
was  upheld  on  the  ground  of  avoid- 
ing a  multiplicity  of  suits;  Guess  v. 
Stone  Mountain  I.  &  R.  Co.,  67  Ga. 
215,  and  the  similar  case  of  South 
Carolina  R.  Co.  v.  Steimer,  44  Ga. 
546.  Illinois  Central  R.  Co.  v.  Gar- 
rison, 81  Miss.  257,  95  Am.  St.  Rep. 
469,  32  South.  996,  appears  to  be  a 
case  of  the  same  general  character, 
so  far  as  may  be  judged  from  the 
imperfect  statement  of  facts.  Com- 
plainant claimed  the  right  to  over- 
flow, by  means  of  its  dam,  the  lands 
of  the  numerous  defendants,  under 
a  dedication  by  the  defendant's 
predecessors  in  title;  held,  that  it 
might  properly  bring  its  bill  to  es- 
tablish this  right  and  enjoin  actions 
at  law  for  damages  brought  by  the 
defendants,  citing  the  text,  §  268; 
Mayor  of  York  v.  Pilkington,  1  Atk. 
282,  and  other  cases.  The  court  also 
indicated  that  it  was  the  proper 
practice  in  such  cases  to  issue  a  tem- 
porary writ  enjoining  each  of  the 
defendants  from  further  prosecution 
of    Mb    action    at    law    during    the 


pendency  of  the  equitable  action. 
"No  constitutional  rights  of  defend- 
ants are  taken  away  by  the  mere 
postponement  of  their  actions  at 
law;  for  if  plaintiff  is  herein  suc- 
cessful they  are  not  entitled  to  an 
assessment  of  damages,  and  if  un- 
successful the  actions  at  law  will 
duly  proceed":  City  of  Albert  Lea  v. 
Nielsen,  83  Minn.  246,  86  N.  W.  83; 
same  litigation,  City  of  Albert  Lea 
V.  Davies,  80  Minn.  101,  81  Am.  St. 
Rep.  242,  82  N.  W.  1104,  and  State 
v.  District  Judge,  85  Minn.  215,  88 
N.  W.  742.  The  receiver  of  a  na- 
tional bank  brought  an  action  in  the 
nature  of  a  bill  of  peace  against 
numerous  holders  of  pass-books  is- 
sued by  a  savings  bank  in  the  name 
of  the  national  bank.  Several  of 
the  defendants  had  brought  suits 
against  the  plaintiff,  each  present- 
ing the  common  question  of  the  au- 
thority of  the  savings  bank  to  bind 
the  national  bank.  It  was  held  that 
the  bill  of  peace  was  properly 
brought,  though  the  defendants' 
claims  each  arose  from  an  entirely 
separate  and  distinct  transaction; 
citing  the  text,  §§  255,  269,  274,  and 
reviewing  the  New  York  cases;  Kel- 
logg V.  Chenango  Valley  Sav.  Bank, 
42  N.  Y.  Supp.  379,  11  App.  Div.  458. 
A  large  number  of  actions  were 
brought  by  policy-holders  in  a  bene- 
ficial association,  each  involving  the 
right  to  raise  the  rate  of  assess- 
ment; on  account  of  the  single  ques- 
tion of  law  involved,  equity  took 
jurisdiction  to  consolidate  the  ac- 
tions and  enjoin  their  further  pros- 
ecution in  the  court  of  law:  Su- 
preme Lodge  of  Fraternal  Union  of 
America  v.  Ray  (Tex.  Civ.  App.), 
]06  S.  W.  46  (an  instructive  case; 
citing  various  paragraphs  of  the 
text).     See,    also,    Smyth    v.    Ames, 


465 


TO    PREVENT    A    MULTIPLICITY    OF    SUITS. 


§263 


of  preventing  a  multiplicity  of  suits  has  been  firmly  estab- 


169  U.  S.  466,  18  Sup.  Ct.  418,  an  ac- 
tion brought  by  railroad  companies 
to  test  the  validity  of  a  statute 
regulating  rates,  where  "the  trans- 
actions of  a  single  week  would  ex- 
pose any  company  questioning  the 
validity  of  the  statute  to  a  vast 
number  of  suits  by  shippers,  to  say 
nothing  of  the  heavy  jjenalties 
named  in  the  statute";  Dinsraore  v. 
Southern  Express  Co.,  92  Fed.  714,  a 
similar  case,  and  Haverhill  Gaslight 
Co.  V.  Barker,  109  Fed.  694,  injunc- 
tion against  state  officers  fixing 
rates  for  gas,  where  the  action  of 
the  officers  would  involve  the  plain- 
tiff in  a  multitude  of  suits  with  its 
customers;  Jordan  v.  Western  U.  T. 
Co.  (Kan.),  76  Pac.  396.  See,  also, 
the  similar  recent  cases,  where  an 
ordinance  or  statute  exposed  a  pub- 
lic service  company  to  numerous 
suits  by  its  patrons,  workmen,  etc.; 
Chicago  City  Ey.  Co.  v.  City  of  Chi- 
cago, 142  Fed.  844;  Ozark-Bell  Tele- 
phone Co.  v.  City  of  Springfield,  140 
Fed.  666  (enjoining  ordinance  fix- 
ing rates,  where  company  had  two 
thousand  and  fifty  subscribers  whose 
contracts  might  be  subject  of  suit, 
and  would  be  liable  to  prosecution 
and  fine  in  case  of  each);  Illinois 
Central  R.  Co.  v.  Baker,  155  Ky.  512, 
49  L,  K.  A.  (N.  S.)  496,  159  S.  W. 
1169  (a  well-considered  case,  quot- 
ing §  245  of  the  text.  A  statute 
imposed  penalties  on  railroad  compa- 
nies for  failure  to  furnish  cars.  Nu- 
merous workmen — miners — brought 
suits  to  collect  penalties  in  small 
amounts,  claiming  under  the  stat- 
ute, because  the  shortage  in  cars 
threw  them  out  of  employment. 
The  company  obtained  an  injunc- 
tion against  them  because  they  had 
no  legally  enforceable  demand,  and 
because  of  the  multiplicity  of  suits; 
1—30 


the  court  distinguishing  the  cases 
where  the  plaintiffs  at  law  have  sep- 
arate, meritorious  causes  of  action); 
Southern  Pacific  Co.  v.  Robinson, 
132  Cal.  408,  12  L.  R.  A.  (N.  S.)  497, 
64  Pac.  572  (suit  to  enjoin  and  con- 
solidate several  hundred  actions  at 
law  against  a  railroad  company  for 
refusal  to  comply  with  a  statute  re- 
quiring it  to  issue*  tickets  with  stop- 
over privileges,  where  the  tickets 
were  bought  by  persons  who  did  not 
clesire  to  exercise  such  privilege,  but 
merely  to  enforce  the  penalties 
for  its  refusal).  In  National  Park 
Bank  v.  Goddard,  62  Hun,  31,  16  N. 
Y.  Supp.  343,  2  Ames  Cas.  Eq.  Jur. 
82;  affirmed,  131  N.  Y.  503,  30  N.  E. 
566,  1  Keener  Cas.  Eq.  Jur.  142,  the 
plaintiff,  claiming  a  lien  by  .  at- 
tachment on  a  stock  of  goods,  en- 
joined numerous  replevin  suits  sub- 
sequently brought  for  the  recovery 
of  different  portions  of  the  stock  by 
numerous  defendants,  jurisdiction 
being  taken  on  the  ground  of  pre- 
venting a  multiplicity  of  suits. 

In  the  striking  case  of  Southern 
Steel  Co.  V.  Hopkins,  157  Ala.  175, 
131  Am.  St.  Rep.  20,  16  Ann.  Cas. 
690,  20  L.  R.  A.  (N.  S.)  848,  47 
South.  274,  the  facts  are  thus  stated 
by  the  court:  An  explosion  occurred 
in  a  mine  owned  by  the  complain- 
ant's predecessor,  by  which  one  hun- 
dred and  ten  persons  lost  their  lives, 
and  one  hundred  and  ten  separate 
suits  were  brought  by  their  repre- 
sentatives to  recover  damages  for 
alleged  negligence  by  the  owner  of 
the  mine,  by  which  the  accident  oc- 
curred. Complainant,  alleging  that 
it  had  a  perfect  defense  applicable 
alike  to  all  these  suits,  filed  its  bill 
to  enjoin  actions  at  law  until  this 
defense    could   be    determined.     The 


§263 


EQUITY    JURISPRUDENCE. 


466 


lished  from  an  early  day,  with  respect  to  the  facts  and  cir- 


allegations  showed  that  it  would  be 
impossible  for  the  complainant  to 
properly  present  the  defense^  at  law, 
because  many  of  the  cases  would  be 
on  trial  in  different  courts  at  the 
same  time,  and  the  expenses  and 
costs  of  the  litigation  at  law  would 
be  ruinous,  though  successful  against 
every  plaintiff.  In  an  able  opinion 
by  Tyson,  Ch.  J.,-  pointing  out  the 
practical  necessity  of  the  jurisdic- 
tion for  the  speedy  and  economical 
administration  of  justice,  the  bill 
was  sustained;  following  earlier 
Alabama  cases,  distinguishing  Tur- 
ner V.  Mobile,  135  Ala.  73,  77,  33 
South.  132  (anfe,  §2511/2,  note  (e)), 
and  declining  to  follow  Tribette  v. 
Illinois  Cent.  R.  Co.,  70  Miss.  182,  35 
Am.  St.  Rep.  642,  19  L.  R.  A.  660,  12 
South.  32  {post,  §264,  note  (b).  On 
a  second  appeal,  however,  the  deci- 
sion was  reversed  and  the  bill  dis- 
missed: See  post,  §  264,  note  (b);  the 
relief  sought  by  the  amended  bill  in- 
cluding a  trial  in  the  equity  suit  of 
the  numerous  issues  as  to  damages, 
in  case  the  company  should  be 
found  to  have  no  defense. 

In  Whitlock  v.  Yazoo  &  M.  V. 
R.  R.  Co.,  91  Miss.  779,  45  South. 
861,  a  number  of  suits  had  been  in- 
stituted by  passengers  on  the  com- 
plainant's train,  alleging  that  they 
were  unreasonably  delayed  through 
the  negligence  of  the  complainant. 
and  demanding  actual  and  punitive 
damages;  the  complainant  brought 
its  bill  to  enjoin  the  maintenance  of 
these  suits,  praying  that  they  might 
be  ordered  to  be  tried  in  one  trial 
in  the  chancery  court.  The  bill  was 
sustained.  It  does  not  appear  from 
the  very  brief  report  of  the  case 
that  the  complainant  set  up  any 
common  defense  to  the  suits  at  law; 
if  this  was  the  fact,  the  bill  clearly 


comes  within  the  condemnation  of 
the  principle  explained  in§251i/^, 
ante,  and  should  have  been  dis- 
missed. 

(b)  Injunction  Against  Tax  Pro- 
ceedings which  involve  the  single 
plaintiff  in  litigation  with  numer- 
ous parties.  The  situation  in  these 
cases  is  the  converse  of  that  de- 
scribed in  §§  258-260,  supra.  Where 
a  bank  or  other  corporation  is  re- 
quired by  law  to  pay  the  taxes  as- 
sessed on  all  of  its  shares,  and  re- 
imburse itself  by  withholding  pro- 
portionate parts  of  the  dividends 
from  its  shareholders,  it  may  enjoin 
an  illegal  tax,  since  its  payment 
thereof  would  subject  it  to  a  suit  by 
each  shareholder:  Cummings  v.  Mer- 
chant's Nat.  Bank,  101  U.  S.  153; 
followed  in  Hills  v.  National  Albany 
Exch.  Bank,  105  U.  S.  319,  5  Fed. 
248;  Albany  City  Nat.  Bank  v. 
Maher,  19  Blatchf.  184,  6  Fed.  417; 
Whitney  Nat.  Bank  v.  Parker,  41 
Fed.  402;  Third  Nat.  Bank  v.  Mylin, 
76  Fed.  385;  also,  Charleston  Na- 
tional Bank  v.  Melton,  171  Fed.  743. 
By  the  practice  in  many  of  the 
states,  taxes  on  railroad  companies, 
telegraph  companies,  and  the  like 
are  assessed  by  a  state  board  on  all 
the  property  of  the  company  within 
the  state,  and  proportionate  parts  of 
these  taxes  are  certified  for  collec- 
tion to  the  tax  officials  of  the  vari- 
ous counties  in  which  the  company 
operates.  An  illegality  in  the  as- 
sessment by  the  state  board  may 
thus  expose  the  company  to  separate 
suits  in  many  counties,  and  has  fre- 
quently been  the  subject  of  an  in- 
junction on  the  ground  of  prevent- 
ing a  multiplicity  of  suits:  Western 
Union  Tel.  Co.  v.  Poe,  61  Fed.  449, 
453,  by  Taft.  Cir.  J.;  Sanford  v.  Poe, 
G9  Fed.   546,  548,   60  L.  R.  A.   641; 


467 


TO    PREVENT    A    MULTIPLICITY    OF    SUITS. 


§263 


cumstances  which  constitute  the  first  and  second  classes, 


16  C.  C.  A.  305;  Western  Union  Tel. 
Co.  V.  Norman,  77  Fed.  13,  21;  Tay- 
lor V.  Louisville  &  N.  E.  R.  Co.,  88 
Fed.  350  (C.  C.  A.),  by  Taft,  Cir.  J.; 
Chesapeake  &  0.  R.  R.  Co.  v.  Miller, 
19  W.  Va.  408;  Western  Union  Tel. 
Co.  V.  Trapp,  186  Fed.  114;  108 
C.  C.  A.  226;  but  see,  where  the 
officers  in  other  counties  are  not  par- 
ties to  the  suit  and  would  not  be 
bound  by  the  decree,  Pullman  Co.  t. 
Tamble,  173  Fed.  200.  See,  also,  the 
following  cases,  in  which  railroad 
companies  were  exposed  to  tax  suits 
in  different  counties,  all  involving  a 
common  question:  Union  Pac,  R.  R. 
Co.  T.  McShane,  3  Dill.  303,  Fed. 
Cas.  No.  14,382;  affirmed,  22  Wall. 
444;  Union  Pac.  R.  R.  Co.  v.  Chey- 
enne, 113  U.  S.  516,  5  Sup.  Ct.  601; 
Northern  Pac.  R.  R.  Co.  v.  Walker, 
47  Fed.  681  (quoting  §  274  of  the 
text);  Mobile  &  0.  R.  R.  Co.  v.  Mose- 
ley,  52  Miss.  127,  137.  In  Pyle  v. 
Brenneman,  122  Fed.  787,  the  plain- 
tiff, in  pursuit  of  his  legal  remedy, 
would  hare  been  compelled  to  sue  a 
number  of  different  municipalities 
among  whom  the  tax  collected 
would  be  distributed. 

(c)  Injunction  Against  Numerous 
Attachments  or  Executions  on  prop- 
erty claimed  adversely  by  complain- 
ant. "Where  several  executions  in 
favor  of  different  plaintiffs  have 
been  levied  on  the  same  property, 
and  one  person  has  filed  in  resist- 
ance to  each  levy  a  separate  claim, 
and  the  claim  cases  thus  made  are 
pending  in  court,  all  involving  the 
same  question,  and  it  being  one 
upon  the  decision  of  which  the  sub- 
jection or  iion-subjection  of  the 
property  to  all  the  executions  de- 
pends, an  equitable  petition  will  lie 
in  favor  of  the  claimant  against  all 
the    plaintiffs,    jointly,    to    bring    to 


trial  aU  of  the  claims  together,  and 
dispose  of  them  by  one  verdict  and 
judgment":  Smith  v.  Dobbins,  87 
Ga.  303,  13  S.  E.  496,  relying  on 
§  269  of  the  text.  Similarly,  where 
a  debtor  has  made  a  transfer  of  his 
property,  and  thereafter  successive 
attachments  are  levied  and  threat- 
ened thereon  by  his  creditors,  each 
claiming  that  the  transfer  was 
fraudulent,  the  transferee  may  main- 
tain an  action  against  all  of  the 
attaching  creditors  to  have  further 
attachments  enjoined  and  his  right 
to  the  property  determined;  Bishop 
V.  Rosenbaum,  58  Misa.  84  (though 
the  statute  provides  a  method  for 
third  persons  to  assert  their  claims 
to  property  attached);  Pollock  v. 
Okolona  Sav.  Inst.,  61  Miss.  293  (re- 
lying on  this  chapter) ;  Lowenstein 
v.  Abramsohn,  76  Miss.  890,  25 
South.  498.  See,  also,  the  analogous 
case  of  National  Park  Bank  v.  God- 
dard,  62  Hun,  31,  16  N.  Y.  Supp. 
343,  2  Ames  Cas.  Eq.  Jur.  82;  af- 
firmed in  131  N.  Y.  503,  30  N.  E. 
566,  1  Keener's  Cas.  Eq.  Jur.  142; 
and  Chase  v.  Cannon,  47  Fed.  674, 
which  was  a  suit  by  a  receiver  to 
determine  what  liens  by  garnish- 
ment certain  creditors  had  upon 
property  he  was  suing  to  recover, 
there  being  a  question  of  law  com- 
mon to  the  claim  of  each  defendant. 
(d)  Injunction  Against  Numerous 
Trespassers  where  the  relief  might 
not  be  granted  against  a  single  de- 
fendant. In  Stockwell  v.  Fitzger- 
ald, 70  Vt.  468,  41  Atl.  504,  it  was 
held  that  equity  has  jurisdiction  of 
a  bill  to  maintain  a  right  of  way 
against  the  encroachments  of  sev- 
eral owners  who  have  distinct  inter- 
ests to  avoid  a  multiplicity  of  suits. 
"Proceedings  at  law  might  result  in 
his  having  no  passage-way,  although 


§263 


EQUITY    JURISPRUDENCE. 


468 


there  are  no  decisions  which  positively  deny  the  jurisdiction 


given  a  strip  two  rods  wide  as 
against  each  lot."  In  "Woodruff  v. 
North  Bloomfield,  etc.,  Min.  Co.,  8 
Saw.  628,  the  conclusions  of  the  text 
were  expressly  approved;  this  was 
an  action  brought  by  a  riparian  pro- 
prietor to  restrain  a  large  number 
of  mining  companies  who  severally 
owned  mines  on  the  affluents  of  a 
river,  which  were  worked  inde- 
pendently of  each  other  by  the  hy- 
diaulic  process,  from  discharging 
their  waste,  earth,  and  other  debris 
into  the  affluents  of  the  stream, 
whence  it  flowed  down  into  the 
river,  to  the  injury  of  the  complain- 
ant. The  defendants  demurred  to 
the  bill,  on  the  express  ground  that 
the  complainant's  cause  of  action 
was  distinct  and  several  as  against 
each  of  the  defendants.  In  passing 
on  the  question  thus  raised,  Sawyer, 
C.  J.,  said:  "I  also  think  this  bill 
maintainable  against  all  the  defend- 
ants on  the  jurisdictional  ground  of 
avoiding  a  multiplicity  of  suits. 
There  is  a  common  interest — a 
common,  though  not  joint,  right 
claimed;  and  the  action  on  the  part 
of  all  the  defendants  is  the  same  in 
contributing  to  the  common  nui- 
sance. The  rights  of  all  involve 
and  depend  upon  identically  the 
Fame  questions,  both  of  law  and 
fact.  It  is  one  of  the  class  of  cases, 
like  bills  of  peace  and  bills  founded 
on  analogous  principles,  where  a 
single  individual  may  bring  a  suit 
against  numerous  defendants,  where 
there  is  no  joint  interest  or  title, 
hut  where  the  questions  at  issue  and 
the  evidence  to  establish  the  rights 
of  the  parties  and  the  relief  de- 
manded are  identical.  Without  ana- 
lyzing and  discussing  the  numerous 
cases    upon    the    subject    separately. 


this  case  appears  to  me  to  be  clearly 
within  the  principle  stated  in  and 
established  by  the  following  authori- 
ties." The  learned  judge  then  cites 
Pomeroy's  Eq,  Jur.,  §§  256-269;  and 
Mayor  of  York  v.  Pilkington,  1  Atk. 
283;  Sheffield  W.  W.  v.  Yeomans, 
L.  K.  8  Ch.  8;  Ware  v.  Horwood,  14 
Ves.  28;  Supervisors  v,  Deyoe,  77 
N.  Y.  219;  Schuyler  Fraud  Cases,  17 
N.  Y.  592;  Cent.  P.  Co.  v.  Dyer,  1 
Saw.  650;  Gaines  v.  Chew.  2  How. 
642;  and  Oliver  v.  Piatt,  3  How,  412. 

Percy  Summer  Club  v.  Astle,  145 
Fed.  53,  like  the  leading  case  of 
Mayor  of  York  v.  Pilkington,  ante, 
§  256,  was  a  bill  of  peace  to  protect 
an  exclusive  right  of  fishery  against 
members  of  the  general  public.  The 
trespass  of  each  defendant  was 
too  trifling  to  warrant  injunction 
against  him  separately.  In  Dumont 
V.  Peet,  152  Iowa,  524,  132  N.  W. 
955,  members  of  a  telephone  associa- 
tion sought  to  enjoin  members  of 
another  association  from  connecting 
with  their  lines.  The  injury  result- 
ing from  each  act  of  trespass  was 
trifling,  but  suits  for  damages  would 
of  necessity  have  been  numerous. 

(e)  Cancellation. — A  leading  case 
is  Town  of  Springport  v,  Teutonia 
Savings  Bank,  75  N,  Y,  397.  This 
was  a  suit  for  the  cancellation  of 
certain  bonds  issued  by  the  plaintiff 
and  held  by  numerous  defendants. 
Extrinsic  proof  would  be  required  to 
show  the  invalidity  of  the  bonds  in 
defense  to  a  suit  thereon,  but  that 
fact,  with  the  "mere  ordinary  dan- 
ger of  losing  evidence"  would  not, 
according  to  the  rule  established  in 
New  York,  be  a  sufficient  ground  for 
their  cancellation.  Eapallo,  J,,  dis- 
tinguishing the  case  of  Town  of 
Venice  v.  Woodruff,  62  N.  Y.  462,  20 


469 


TO   PEEVEXT    A    MULTIPLICITY    OF    SUITS. 


§263 


or  the  proi^riety  of  its  exercise  in  cases  belonging  to  either 


Am.  Rep.  495,  sajs  (p.  402):  "It 
was  not  intended  to  be  denied  that 
in  the  case  of  instruments  creating 
a  prima  facie  liability,  and  requir- 
ing an  affirmative  defense,  to  be 
supported  by  extrinsic  proof  of 
facts,  the  circumstance  that  they 
■were  held  by  numerous  parties  who 
might  bring  numerous  suits  upon 
them  in  different  places,  might 
under  some  circumstances  be  re- 
garded as  a  ground  for  equitable 
interposition,  even  though,  if  there 
were  but  a  single  claimant,  equi- 
table relief  would  be  denied  and  the 
party  left  to  his  legal  defense,  nor 
that  where  a  party  was  subjected  to 
or  threatened  with  numerous  vexa- 
tious actions,  equity  might  not  under 
proper  circumstances  restrain  them." 
In  the  similar  case  of  Farmington 
Village  Corp.  v.  Sandy  River  Nat. 
Bank,  85  Me.  46,  26  Atl.  965,  the 
jurisdiction  was  fully  recognized 
but  its  exercise  declined  on  the 
ground  that  no  vexatious  litigation 
appeared  to  be  threatened.  See, 
also,  Brown  v.  Trousdale,  138  U.  S. 
389,  11  Sup.  Ct.  308.  In  Louisville 
N.  A.  &  C.  R.  Co.  V.  Ohio  Val.  I.  & 
C.  Co.,  57  Fed.  42,  45,  the  plaintiff 
sued  for  the  cancellation  of  its  guar- 
anty which  had  been  indorsed  upon 
several  hundred  bonds  issued  by  an- 
other company  illegally  and  fraudu- 
lently. The  court  was  of  the  opin- 
ion that  there  was  an  adequate  de- 
fense at  law  to  a  suit  upon  each 
bond,  considered  by  itself,  but  that 
the  multiplicity  of  suits  threatened, 
and  the  common  question  involved 
of  the  validity  of  the  guaranties 
and  of  the  contract  in  pursuance  of 
which  they  were  made,  rendered  the 
case  one  for  the  exercise  of  its  juris- 
diction;   quoting  §  269    of    the    text. 


and  citing  Railway  Co.  v.  Schuyler, 
17  N.  Y.  592;  Supervisors  v.  Deyoe, 
77  N,  Y.  219;  Waterworks  v.  Yeo- 
mans,  L.  R.  2  Ch.  App.  11.  This 
case  was  distinguished  in  Scott  v. 
McFarland,  70  Fed.  280,  where  the 
numerous  instruments  sought  to  be 
canceled  were  obtained  by  distinct 
and  separate  acts  of  fraud,  present- 
ing no  common  question  for  deci- 
sion. 

Town  of  Fairfield  v.  Southport 
Nat.  Bank,  77  Conn.  423,  59  Atl. 
513,  a  case  for  the  cancellation  of 
notes  held  by  several  defendants, 
also  relies  on  §  269  of  the  text;  but 
the  question  in  the  case  appears  to 
be  one  of  joinder  rather  than  of 
jurisdiction. 

(f)  Quieting  Title,  etc.,  Against 
Numerous  Defendants. — The  doc- 
trine is  applicable  to  a  suit  by  an 
equitable  owner  of  a  large  tract  of 
land,  to  enforce  and  declare  a  trust 
against  a  large  number  of  defend- 
ants, each  claiming  a  distinct  por- 
tion of  the  land,  but  under  one 
fraudulent  title:  Dodge  v.  Briggs,  27 
Fed.  160;  and  to  an  action  to  quiet 
title,  brought  by  a  person  claiming 
title  to  a  single  piece  of  mining 
property,  against  numerous  defend- 
ants, each  of  whom  separately 
claims  a  distinct  portion  of  the 
property,  but  all  of  whose  claims 
are  similar  in  origin,  and  the  de- 
termination of  which  depends  upon 
similar  rules  of  law:  Hyman  v. 
Wheeler,  33  Fed.  630;  and  to  an  ac- 
tion brought  by  a  land-owner  against 
a  large  number  of  defendants,  each 
claiming  a  separate  portion  of  the 
land  under  a  void  sale  thereof  m.ado 
under  the  same  order  of  court:  De 
Forest  v.  Thompson,  40  Fed.  375, 
citing  this  chapter.     See,  also,  Pro- 


§263 


EQUITY   JURISPRUDENCE. 


470 


of  them.     The  instances  are  few  in  which  even  any  special 


teca  V.  Maxwell  Land  Grant  Co. 
(C.  C.  A.),  50  Fed.  674,  citing  this 
chapter;  Lasher  v.  McCreery,  6G 
Fed.  834,  843,  citing  §  245,  supra; 
"Waddingham  v.  Eobledo,  6  N.  M. 
347,  28  Pae.  663.  See,  further,  the 
recent  case,  Asher  v.  Uhl,  122  Ky. 
114,  87  S.  W.  307,  93  S.  W.  29.  In 
all  these  cases  the  jurisdiction  was 
placed  wholly  or  partly  on  the 
ground  of  avoiding  a  multiplicity  of 
suits.  A  similar  action  has  been 
sustained  to  settle  disputed  bound- 
aries by  one  plaintiff  against  nu- 
merous defendants,  owners  in  sev- 
eralty of  a  certain  tract  of  land,  the 
boundaries  of  which,  through  the 
lapse  of  time,  the  carelessness  of  oc- 
cupants, and  the  absence  of  natural 
monuments,  had  become  confused 
and  uncertain:  Beatty  v.  Dixon,  56 
Cal.  622.  In  this  case  the  avoidance 
of  a  multiplicity  of  suits  was  deci- 
sive in  favor  of  the  jurisdiction. 
Central  Pacific  R.  Co.  v.  Dyer,  1 
Saw.  641,  Fed.  Cas.  No.  2,552,  was  a 
statutory  suit  to  quiet  title  against 
numerous  defendants.  By  Mr.  Jus- 
tice Field:  "The  jurisdiction  would, 
therefore,  exist  in  the  present  case 
3  there  were  only  one  defendant  as- 
serting an  interest  or  estate  adverse 
to  the  plaintiff,  but  the  fact  that 
there  are  numerous  defendants 
claiming  distinct  and  separate  par- 
cels by  a  similar  title,  and  threaten- 
ing distinct  actions  for  injuries  to 
their  respective  parcels,  furnishes  a 
further  ground  for  entertaining  the 
bill.  A  court  of  equity  will  always 
interfere  to  prevent  a  multiplicity 
of  suits,  where  the  rights  of  the  par- 
ties can  be  fairly  determined  by  a 
single  proceeding."  Citing  Crews  v. 
Burcham,  1  Black,  352;  Mayor  of 
York  V.  Pilkington,  1  Atk.  282;  and 


Gaines  v.  Chew,  2  How.  640.  See, 
also,  Ellis  v.  Northern  Pac.  R.  Co., 
77  Wis.  114,  45  N.  W.  811,  where  de- 
fendants deriving  title  from  differ- 
ent sources  were  joined  by  a  plain- 
tiff seeking  to  quiet  hi^  title. 

Quieting  Title  to  Numerous  Choses 
in  Action. — In  Franke  v.  H.  P.  Nel- 
son Co.,  157  Wis.  241,  147  N,  W.  13, 
the  plaintiff  claimed  to  be  owner,  by 
assignment,  of  numerous  notes  exe- 
cuted by  purchasers  of  pianos  from 
the  H.  Co.,  each  note  being  secured 
by  a  lien  on  the  piano.  In  each  in- 
stance the  H.  Co.  had  exacted  of  the 
purchaser  execution  of  the  contract 
in  duplicate  or  triplicate,  and  these 
additional  evidences  of  purchaser's 
indebtedness  had,  in  turn,  been  as- 
signed to  other  parties.  The  main 
purpose  of  the  plaintiff's  suit  was  to 
be  declared  the  true  owner  of  the 
notes  and  contracts  outstanding  and 
of  the  right  to  collect  such  notes 
from  the  makers.  The  action  was 
sustained  on  the  ground  of  preven- 
tion of  a  multiplicity  of  suits.  The 
ground  appears  to  be  jurisdictional, 
since  if  there  had  been  but  a  single 
debtor,  an  action  at  law  against  him 
(in  which  action  he  might  inter- 
plead the  rival  claimant)  would, 
presumably,  have  been  an  adequate 
remedy.  The  case  makes  no  men- 
tion of,  and  would  seem  to  be  in- 
consistent with  the  opinion  in,  the 
case  of  Illinois  Steel  Co.  v.  Schroe- 
der,  133  Wis.  561,  126  Am.  St.  Eep. 
977,  14  L.  R.  A.  (N.  S.)  239,  113 
N.  W.  51. 

(g)  Recovery  of  Specific  Chattels. 
One  of  the  earliest  of  the  Ameri- 
can cases,  and  one  of  the  most  strik- 
ing illustrations  to  be  found  in  the 
books,  is  that  of  Vann  v.  Hargctt, 
22  N.  C.   (2  Dev.   &  B.  Eq.)    31,  32 


471 


TO    PREVENT    A   MULTIPLICITY    OF    SUITS. 


26^ 


or  additional  limitation  has  been  placed  upon  the  operation 


Am.  Dec.  689  (1838).  The  bill  al- 
leged that  the  plaiutiffs  were  own- 
ers of  a  remainder  interest  in  cer- 
tain slaves;  that  the  life  tenant  had 
sold  them,  and  that  the  numerous 
defendants  had  possession  of  some 
of  the  issue  of  the  slaves,  assert- 
ing an  absolute  title  therein.  The 
prayer  was  that  the  defendants 
might  surrender  the  slaves  or  ac- 
count for  their  value,  if  they  had 
been  sold.  The  case,  therefore,  pre- 
sents a  clear  illustration  of  the  "con- 
current jurisdiction"  as  defined  by 
the  author,  the  relief  demanded  be- 
ing purely  legal  in  its  nature.  The 
defendants  demurred  on  the  ground 
that  the  plaintiffs  had  a  remedy  at 
law  by  action  of  trover  or  detinue, 
and  on  the  ground  of  multifarious- 
ness. The  opinion  of  Daniel,  J., 
states  the  doctrine  with  admirable 
clearness.  He  says,  in  part:  "The 
title  of  the  plaintiffs  seems  to  be  ad- 
mitted on  both  sides  to  be  a  legal 
title;  we  also  think  it  is  a  legal 
title.  But  if  the  plaintiffs  could  by 
any  possibility  recover  at  law,  that 
is  not  a  reason  sufficient,  in  a  case 
like  the  one  disclosed  by  this  bill, 
why  they  may  not  also  proceed  in 
equity.  The  plaintiffs  claim  by,  and 
seek  to  establish  in  themselves,  one 
legal  title  to  the  slaves,  as  against 
each  and  all  the  numerous  defend- 
ants now  holding  the  same.  .  .  . 
Lord  Eedesdale  says,  courts  of 
equity  will  take  jurisdiction  and 
prevent  multiplicity  of  suits  at  law. 
And  the  cases  in  which  it  is  at- 
tempted, and  the  means  used  for 
that  purpose,  are  various.  With 
this  view,  where  one  general  legal 
right  is  claimed  against  several  dis- 
tinct persons,  a  bill  may  be  brought 
to     establish     the    right.     Mitford's 


Pleadings,  145."  The  judge  there 
states  the  case  of  Mayor  of  York  v. 
Pilkington,  1  Atk.  282  ("The  Case 
of  the  Fisheries,"  ante,  §  256),  and 
the  defendant's  argument,  that 
there  jurisdiction  existed  agaiust 
each  defendant  on  the  ground  of 
continuous  trespass,  and  that  it  was 
merely  decided  that  the  numerous 
defendants,  each  of  whom  might 
have  been  separately  pursued  in 
equity,  were  properly  joined  in  a 
single  suit.  The  court  replies:  "The 
answer  which  we  give  to  this  argu- 
ment is,  that  the  case  put  by  the 
counsel  is  but  one  among  many 
where  equity  will  interfere  to  pre- 
vent a  multiplicity  of  suits  at  law. 
The  cases  in  which  it  is  attempted, 
and  the  means  for  that  purpose,  'are 
various,'  says  Lord  Eedesdale.  The 
case  in  Atkins  is  put  as  one  among 
many  in  illustration  of  this  rule. 
The  object  of  a  court  of  equity  in 
entertaining  such  a  bill,  is  to  pre- 
vent multiplicity  of  suits  at  law  by 
determining  the  rights  of  parties 
upon  issues  directed  by  the  court,  if 
necessary,  for  its  information,  in- 
stead of  suffering  the  parties  to  be 
harassed  by  a  number  of  separate 
suits,  in  which  each  suit  would  only 
determine  the  particular  right  in 
question  between  the  plaintiff  and 
the  defendant  in  it.  The  notion, 
that  equity  interposes  only  to  pre- 
vent a  multiplicity  of  actions,  toties 
quoties  as  the  trespasses  are  com- 
mitted, is  answered  again  by  stat- 
ing, that  such  a  bill  can  scarcely  be 
sustained  where  a  right  is  disputed 
between  two  persons  only,  until  the 
right  has  been  tried  and  decided 
at  law.  Mitford,  146."  In  other 
words,  the  defendants'  counsel  was 
mistaken  in  his  assumption  that  in 


§263 


EQUITY   JURISPRUDENCE. 


472 


of  the  doctrine,  other  than  what  is  contained  in  the  general 


the  "Case  of  the  Fisheries"  the 
court  would  have  taken  jurisdiction 
of  a  bill  against  each  of  the  defend- 
ants separately.  On  the  question  of 
multifariousness  the  court  says: 
"The  court  will  not  permit  a  plain- 
tiff to  demand  by  one  bill  several 
matters  of  different  natures  against 
several  defendants;  for  this  would 
tend  to  load  each  defendant  with  an 
unnecessary  burthen  of  cost,  by 
swelling  the  pleadings  with  the 
state  of  the  several  claims  of  the 
other  defendants,  with  which  he  has 
no  connexion.  But  a  demurrer  of 
this  kind  would  hold  only  when  the 
plaintiffs  claim  several  matters  of 
different  natures.  But  when  one 
general  right  is  claimed  by  the  bill, 
though  the  defendants  have  sepa- 
rate and  distinct  rights,  a  demurrer 
will    not   hold." 

(h)  Pecuniary  Relief  Against  Nu- 
merous Defendants, — The  opinion  in 
Bailey  v.  Tillinghast,  99  Fed.  801, 
806,  807  (C.  C.  A.),  is  very  instruc- 
tive. This  was  a  suit  in  equity  by 
the  receiver  of  a  national  bank 
against  forty-six  stockholders,  for 
the  purpose  of  recovering  an  assess- 
ment of  $61  per  share  levied  by  the 
comptroller  of  the  currency  upon 
their  personal  liability  on  account 
of  the  stock  held  by  them.  By  Sev- 
erens,  D.  J.:  "We  are  clearly  of 
opinion  that  the  bill  should  be  main- 
tained for  the  purpose  of  avoiding  a 
multiplicity  of  suits.  .  .  .  There  is 
a  common  question  in  the  case  be- 
tween the  receiver  and  the  defend- 
ants, namely,  the  question  whether 
the  latter  were  released  from  their 
stock  subscription  by  the  fact  that, 
whereas  the  resolution  for  increas- 
ing the  stock  in  the  sum  of  $300,000 
was  that  under  which  their  subscrip- 


tion took  place,  yet  subsequently  by 
proceedings  to  which  they  did  not 
consent,  the  proposed  increase 
was  reduced  to  $150,000.  .  .  .  And 
these  circumstances,  namely,  the 
great  number  of  the  parties  on  one 
side  or  the  other,  the  identity  of 
the  question  of  law,  and  the  similar- 
ity of  facts  in  the  several  contro- 
versies between  the  respective  par- 
ties, are  the  basis  on  which  the 
jurisdiction  rests.  The  object  is  to 
minimize  litigation,  not  only  in  the 
interest  of  the  public,  but  also  for 
the  convenience  and  advantage  of 
the  parties.  If  the  receiver  was 
compelled  to  bring  separate  suits,  it 
would  entail  a  vast  expense  upon 
the  fund  in  trying  over  and  over 
again  the  identical  questions  of  law 
and  fact  with  each  stockholder,  and 
with  no  substantial  advantage  to 
him,  but  injury,  rather,  in  the  in- 
creased cost  in  the  immediate  suit, 
and  the  larger  burden  upon  the 
fund,  created  by  the  many  suits 
against  the  others.  Nor  is  it  neces- 
sary, as  counsel  seem  to  suppose, 
that  there  should  be  any  privity  of 
interest  between  the  stockholders, 
other  than  that  in  the  question  in- 
volved and  the  kind  of  relief 
sought,  the  right  of  their  claims  be- 
ing common  to  them  all,  in  order  to 
bring  the  case  within  the  jurisdic- 
tion [citing  several  of  the  cases 
mentioned  in  this  chapter].  It  is 
true  there  are  occasional  cases 
where  it  seems  to  have  been  sup- 
posed that  there  must  be  some  com- 
munity of  interest. — some  tie  be- 
tween the  individuals  who  make  up 
the  great  number;  but  the  great 
weight  of  authority  is  to  the  con- 
trary, and  there  is  a  multitude  of 
cases  which  either  in  terms  deny  the 


473 


TO    PREVENT   A    MULTIPLICITY    OF    SUITS. 


§263 


rule  itself  defining  its  operation,  which  was  stated  in  a 


necessity  of  such  a  fact  or  ignore  it 
by  granting  relief  where  the  fact 
did  not  exist.  And,  indeed,  it  is 
difficult  to  find  any  reason  why  it 
should  be  thought  necessary.  It  has 
no  relevancy  to  the  principle  or  pur- 
pose of  the  doctrine  itself,  which 
stands  not  merely  as  a  makeweight 
when  other  equities  are  present,  but 
as  an  independent  and  substantive 
ground  of  jurisdiction."  See,  also, 
Cook  V.  Carpenter,  212  Pa.  St.  165, 
108  Am.  St.  Rep.  854,  4  Ann.  Cas. 
723,  1  K  R.  A.  (N.  S.)  900,  61  Atl. 
799  (bill  by  assignee  of  corporation 
to  recover  unpaid  stock  subscrip- 
tions: said  that  "the  question  in- 
volved in  all  the  cases  is  substan- 
tially the  same,  namely,  ought  the 
corporation  to  collect  in  its  unpaid 
capital?  It  is  a  pure  question  of 
law,  and  may  be  decided  once  for  all 
in  one  suit  as  well  as  in  a  thou- 
sand") ;  Brown  v,  AUebaeh,  156  Fed. 
697;  New  York  Life  Ins.  Co.  v. 
Beard,  80  Fed.  66;  Wyman  v.  Bow- 
man, 127  Fed.  257,  262-265;  Boyd  v. 
Schneider  (C.  C.  A.),  131  Fed.  223, 
reversing  124  Fed.  239,  and  relying 
en  author's  text,  §  245  (suit  by  de- 
positors in  bank  against  negligent 
bank  directors).  For  limitations  on 
the  jurisdiction  in  cases  of  this  char- 
acter, see  Hale  v.  Allinson,  188  U.  S. 
56,  23  Sup.  Ct.  244,  ante,  §  2511/2- 

(II)  Joinder  of  Numerous  De- 
fendants Against  Each  of  Whom  the 
Plaintiff  has  a  Similar  Cause  of  Ac- 
tion for  Equitable  Relief. — It  has 
been  frequently  held  that  a  riparian 
proprietor  may  restrain  several  tort 
feasors  from  diverting  or  polluting 
the  waters  of  a  stream,  although 
they  were  not  acting  in  unity  of  de- 
sign or  with  concert  of  action; 
Woodruff  V.  North  Bloomfield  G.  M. 


Co.,  8  Saw.  628,  16  Fed.  25,  citing 
this  chapter;  Union  Mill  &  M.  Co. 
V.  Dangberg,  81  Fed.  73,  88;  Lock- 
wood  Co.  V.  Lawrence,  77  Me.  297, 
52  Am.  Rep.  763,  quoting  §  269  of 
the  text;  Miller  v.  Highland  Ditch 
Co.,  87  Cal.  430,  22  Am.  St.  Rep.  254, 
25  Pac.  550;  Hillman  v.  Newington, 
57  Cal.  56;  Draper  v.  Brown,  115 
Wis.  361,  91  N.  W.  1001;  Graham  v. 
Dahlonega  Co.,  71  Ga.  296.  See, 
also,  Norton  v.  Colusa,  P.  M.  &  S. 
Co.,  167  Fed.  202.  Joinder  of  par- 
ties contributing  to  a  nuisance,  in 
general:  American  Smelting  &  Re- 
fining Co.  ▼.  Godfrey,  158  Fed.  225, 
14  Ann.  Cas.  8,  89  C.  C.  A.  139;  La- 
dew  v.  Tennessee  Copper  Co.,  179 
Fed.  245,  So  a  riparian  proprietor 
on  a  private  stream  could  maintain 
a  single  action  against  several  de- 
fendants, each  of  whom  acted  inde- 
pendently of  the  others,  but  who 
claimed  a  common  right  to  float  logs 
down  the  stream,  to  restrain  them 
from  so  doing,  and  to  quiet  his  title 
as  against  all  the  defendants;  Meyer 
V.  Phillips,  97  N.  Y.  485.  49  Am. 
Rep.  538.  On  the  same  principle  an 
injunction  has  been  granted  in  a 
suit  by  the  owner  of  a  large  body 
of  land,  valuable  only  for  its  pastur- 
age rights  and  privileges,  to  protect 
that  right  from  use  by  cattle  and 
stock-owners,  neighbors  of  the  land 
of  complainant,  under  authority  of 
an  unconstitutional  statute;  Smith 
v.  Bivens,  56  Fed.  352.  2  Ames  Cas. 
Eq.  Jur.  62;  and  in  a  suit  by  a  rail- 
road company  to  restrain  numerous 
ticket  "scalpers"  or  brokers  from 
purchasing  and  reselling  partly  used 
tickets  which  by  their  terms  wore 
non-transferable;  Nashville,  C.  &  St. 
L.  R.  Co.  V.  M'Connell,  82  Fed.  65, 
75,    citing    this    chapter.    Bitterman 


§263 


EQUITY   JUEISPEUDENCE. 


474 


former  paragraph ;  ^  namely,  tliat  if  the  plaintiff's  right,  in- 
terest, or  estate  in  the  subject-matter  is  contested,  he  is  gen- 
erally required  to  establish  it  by  an  action  at  law,  before  he 
can  invoke  the  aid  of  equity.    As  most  of  these  cases  have 


§  263,  1  See  ante,  §  252. 

V.  Louisville  &  Nashville  R.  Co.,  207 
U.  S.  205,  12  Ann.  Cas.  693,  52  L.  Ed. 
171,  28  Sup.  Ct.  91  (the  acts  com- 
plained of  are  of  like  character,  and 
their  operation  and  effect  on  the 
rights  of  the  complainant  identical, 
relief  sought  against  each  defendant 
is  the  same,  and  the  defenses  are 
common  and  involve  like  legal  ques- 
tions) ;  Pennsylvania  Co.  v.  Bay,  150 
Fed.  770.  In  the  five  cases  last 
cited  it  does  not  clearly  appear  that 
an  injunction  would  have  been 
granted  against  a  single  defendant; 
these  cases  may,  therefore,  be  au- 
thority on  the  question  of  jurisdic- 
tion as  well  as  of  joinder.  On  the 
authority  of  the  ticket-scalping 
cases,  in  Goldfield  Consolidated 
Mines  Co.  v.  Richardson,  194  Fed. 
198,  the  defendants,  who  were  sepa- 
rate and  distinct  purchasers  of  ore 
stolen  in  innumerable  small  quanti- 
ties by  complainants'  employees, 
were  held  properly  joined  in  a  suit 
to  enjoin  further  purchases.  "The 
operation  and  effect  of  each  act 
upon  complainants'  rights  is  identi- 
cal. The  injunctive  relief  sought 
against  each  defendant  is  the  same, 
und  the  defenses  thus  far  suggested 
are  common  to  all  the  defendants, 
and  involve  like  legal  questions." 
In  a  suit  by  a  railroad  company  to 
protect  its  right  of  way  against  nu- 
merous land-owners  who  interfere 
with  and  deny  its  right,  they  may 
all  be  joined,  when  there  is  only  one 
question  to  be  settled.  Louisville  & 
N.  R.  Co.  V.  Smith  (C.  C.  A.),  128 
Fed.  1,  6,  citing  this  chapter. 


It  is  well  settled  that  a  creditor's 
bill  may  be  maintained  against  sev- 
eral defendants,  although  they  are 
not  united  in  interest,  to  reach  as- 
sets of  the  debtor  in  their  several 
possession:  Sheldon  v.  Packet  Co.,  8 
Fed.  769  (Harlan,  J.);  Hayden  v. 
Thrasher,  18  Fla.  795;  Robinson  v. 
Springfield  Co.,  21  Fla.  203,  238; 
Bobb  V.  Bobb,  76  Mo.  419;  Rinehart 
V,  Long,  95  Mo.  396,  8  S.  W.  559; 
Parish  v.  Sloan,  3  Ired.  Eq.  (N.  C.) 
611.  On  the  same  principle  the 
stockholders  in  a  corporation  may 
join  in  a  single  suit  the  grantees  in 
distinct  conveyances  of  the  corpo- 
rate property  which  they  seek  to 
cancel  because  made  under  an  in- 
valid resolution  of  the  directors; 
Hardie  v.  Bulger,  66  Miss.  577,  6 
South.  186.  And  an  assignee  in 
bankruptcy  may  file  his  bill  against 
all  the  encumbrances  of  the  bank- 
rupt's property  to  ascertain  the 
validity,  priority,  and  amount  of  the 
encumbrances;  McLean  v.  Lafayette 
Bank,  3  McLean,  415,  419,  Fed.  Cas. 
No.  8,886.  In  the  last  case  it  was 
distinctly  held  by  Mr.  Justice  Mc- 
Lean that  privity  among  the  parties 
plaintiff  or  defendant  is  not  neces- 
sary in  a  bill  of  peace,  and  it  was 
pointed  out  that  Lilly  v.  Doig,  2 
Ves.  Jr.  486,  is  wholly  irreconcilable 
with  the  leading  case  of  Mayor  of 
York  V.  Pilkington,  1  Atk.  282 
("The  Case  of  the  Fisheries," 
ante,  §  256).  Equity  has  jurisdic- 
tion, partly  on  the  ground  of  pre- 
venting a  multiplicity  of  suits,  of 
a  suit  by   the   receiver  of  an  insol- 


475  TO   PREVENT   A   MULTIPLICITY    OF    SUITS.  §  263 

already  been  cited  in  connection  with  the  foregoing  affirma- 
tive discussion,  I  shall  simply  collect  them  here  in  the  f  oot- 
note.2 

§263,  ZHnghlett  v.  Harris,  1  Del.  Ch.  349,  352,  12  Am.  Dec.  104; 
Kichmond  v.  Dubuque  etc.  R.  R.  Co.,  33  Iowa,  422,  487,  488;  Eastman  v. 
Amoskeag,  etc.  Co.,  47  N.  H.  71,  79,  80;  Eldridge  v.  Hill,  2  Johns.  Ch.  281; 
West  V.  Mayor,  etc.,  of  N.  Y.,  10  Paige,  539.  For  the  facts  and  particu- 
lar points  decided  in  these  cases,  see  ante,  in  notes  under  §  §  252,  253,  and 
254.  Richmond  v.  Dubuque  etc.  R.  R.  Co.,  33  Iowa,  422,  487,  488,  con- 
tains the  following  dictum  by  Beck,  C.  J. :  "It  is  said  that  equity  will  take 
jurisdiction  of  this  case  in  order  to  avoid  a  multiplicity  of  suits  between 
the  parties.  This  is  sometimes  a  ground  for  the  exercise  of  chancery 
powers,  but  it  is  not  of  such  controlling  nature  as  to  require  the  jurisdic- 
tion to  be  assumed  even  though  other  equitable  principles  are  disregarded. 
The  rule  relied  on  is  usually  applied  in  cases  where  chancery  has  ji;risdic- 
tion.  for  a  proper  purpose,  of  a  subject-matter  out  of  which  grow  other 
questions  requiring  adjudication.  In  such  cases  the  parties  will  not  be 
turned  over  to  the  law  court  which  has  cognizance  of  the  matter,  but  it 
will  be  retained,  that  all  rights  relating  thereto  may  be  settled:  1  Story's 
Eq.  Jur.,  §§  64-67.  We  do  not  understand  the  mere  fact  that  there  exist 
divers  causes  of  action,  which  may  be  the  foundation  of  as  many  different 
suits  between  the  parties  thereto,  is  a  ground  upon  which  equity  may  be 
called  upon  to  assume  jurisdiction,  and  settle  all  such  matters  in  one  suit. 
The  case  would  not  be  different  if  some  of  the  causes  of  action  were  not 
matured.  We  have  never  heard  it  claimed  that  equity  will  entertain  an 
action  upon  a  contract  requiring  tin  payment  of  money  daily,  monthly,  or 
yearly.  Yet  in  such  a  case  an  action  would  accrue  at  each  of  such  periods, 
and  there  would  thus  be  jDrospectively  a  gi'eat  multiplicity  of  actions.  In 
the  case  before  us,  admitting  the  contract  to  be  divisible,  and  that  an  ac- 
tion may  be  maintained  upon  every  breach,  this  is  no  ground  for  inter- 
ference by  a  court  of  chancery.  If  the  contract  be  divisible,  and  the  plain- 
tiff has  a  right  of  action  thereon  to  recover  money  accruing  every  day, 
equity  cannot  take  the  right  from  him,  and  substitute  a  remedy  which  will 
award  him  damages  in  gross  for  the  whole  amount  which  he  may  ultimately 
recover."  This  case  was  an  equitable  action  to  compel  the  specific  per- 
formance of  a  long  and  complicated  agreement,  extending  in  its  operation 
over  several  years,  and  containing  numerous  provisions,  but  relating  wholly 
to  personal  services  and  personal  property.     The  plaintiff  claimed,  among 

vent  national   bank   against  all   its  at  a  time  when  the   bank  was  in- 

shareholdcrs    to    recover    dividends  solvent.     Haydon    v.    Thompson,    17 

that  have   been   unlawfully   paid   to  C.   C.   A.  592,   71   Fed.   60,  36   U.  S. 

them  out  of  the  capital  of  the  bank  App.  361. 


§  264  EQUITY   JURISPRUDENCE.  476 

§  264.  In  the  Third  and  Fourth  Classes.^ — T  pass,  then, 
to  the  denial  or  the  restrictions  and  limitations  of  the  doc- 
trine in  its  application  to  cases  of  the  third  and  fourth 
classes.  There  are  instances  of  such  absolute  denial,  or  of 
stringent  limitations,  in  suits  brought  by  a  number  of  per- 
sons to  establish  some  individual  but  common  right  existing 
on  behalf  of  each  and  all,  against  a  single  wrong-doer  or 
trespasser;  or  brought  by  a  single  plaintiff  to  restrain  a 
number  of  simultaneous  actions  commenced  against  him 
by  different  persons,  upon  the  allegation  that  they  all  in- 
volved similar  facts,  and  depended  upon  the  same  questions 
of  law,  and  therefore  had  a  common  nature.  In  these  cases 
the  jurisdiction  was  denied,  on  the  ground  that  there  was 
no  privity  or  legal  relation  or  community  of  interest  and 

other  arguments,  that  equity  had  jurisdiction  to  prevent  a  multiplicity  of 
suit?,  since  from  the  continuous  nature  of  the  agreement,  and  the  number 
and  variety  of  its  provisions,  there  would  be  many  breaches,  and  conse- 
quently many  actions  at  law  to  recover  damages.  The  decision  that  such 
a  case  does  not  come  within  the  doctrine  as  to  preventing  a  multiplicity 
of  suits,  since  the  plaintiff's  remedy  at  law  is  adequate,  simple,  and  certain, 
is  plainly  con-eet.  The  correctness  of  the  learned  judge's  remarks  con- 
cerning the  origin  and  nature  of  the  jurisdiction  in  general  to  prevent  a 
multiplicity  of  suits  is  much  more  doubtful.* 

§  263,  (a)  The  above  note  is  cited,  tiff   might   wait   until    the    term    of 

and    the    decision    in    Eichmond    v.  the   contract   had   expired   and   then 

Dubuque  etc.  R.  Co.,  33  Iowa,  422,  bring   a   single    action   at   law.     So, 

followed,  in  General  Electric  Co.  v.  where  a  cotton  merchant  sought  to 

Westinghouse    El.    &   Mfg.    Co.,    144  enjoin  a  public  warehouseman  from 

Fed.    458,    holding    it    not    to    be    a  overcharges  for  storage,  he  might  in 

ground    for    jurisdiction    to    enjoin  one  action  at  law  sue  to  recover  for 

breach  of  a  contract,  that  the  com-  all  the  overcharges  paid  during  the 

plainant  must  bring  many  actions  at  entire    cotton    season;    hence    ther© 

law  to  recover  damages  for  succes-  was  no  necessity  for  a  multiplicity 

sive  breaches.     The  demurrer  to  the  of  suits:  Gulf  Compress  Co.  v.  Har- 

amended  complaint  in  this  case  was  ris,  Cortner  &  Co.,  158  Ala.  343,  24 

overruled  in   151   Fed.   667.     In   At-  L.  R.  A.   (N.  S.)   399,  48  South.  477. 

torney-General   v.   Board   of   Educa-  §  264,    (a)     Sections    264-269     are 

tion   (Mich.),  95  N.  W.  746,  it  was  cited  in  American   Cent.  Ins.  Co.  v. 

held  that  the  avoidance  of  a  multi-  Landau,  56   N.  J.  Eq.   513,   39   Atl. 

plicity  of  suits  was  no  ground  for  400,  a  case  recognizing  the  author's 

injunction   against  the  breach   of  a  "third  class." 
continuing  contract  when  the  plain- 


477 


TO    PREVENT    A    MULTIPLICITY    OF    SUITS. 


261 


right  among  the  individuals  of  the  numerous  body,  which,  it 
was  held,  must  exist  in  order  that  a  court  of  equity  may 
interfere,  under  such  circumstances,  for  the  purpose  of 
preventing  a  multiplicity  of  suits.^  *>    My  critical  examina- 

§264,  1  County  of  Lapeer  v.  Hart,  Harr.  (Mich.)  157;  Marselis  v. 
Morris  Canal  Co.,  1  N.  J.  Eq.  31,  35-39.  In  County  of  Lapeer  v.  Hart, 
Harr.  (Mich.)  157,  sixty-seven  actions  at  law  had  been  begun,  against  the 
county  supervisors  on  certain  drafts  or  orders  for  the  payment  of  money 
in  various  sums  issued  by  them,  and  owned  by  the  respective  plaintiffs  in 
said  actions,  individually.  These  orders  had  all  been  issued  by  the  super- 
visors in  pursuance  of  the  same  supposed  authority,  and  in  the  same  pro- 
ceeding. An  action  was  brought  by  each  holder  to  recover  the  amount  of 
his  order.  "Whatever  defense  the  county  had  in  each  action  was  wholly 
legal.  The  county  thereupon  filed  this  bill  in  equity  against  all  the  holdei-s 
of  said  orders,  seeking  to  restrain  their  actions  at  law,  and  to  have  the 
orders  declared  void,  etc.  It  was  held  that  no  such  suit  could  be  main- 
tained by  the  county,  since  there  was  no  common  interest  among  the  order 
holders;  it  was  not  a  case  which  came  within  the  principle  of  a  "bill  of 


§264,    (b)    Cases    of   the   Fourth 
Class    Denying    the    Jurisdiction. — 

The  following  cases  deny  the  juris- 
diction with  more  or  less  emphasis; 
but  most  of  them  are  distinguish- 
able as  eases  where  the  exercise  of 
the  jurisdiction  was  unnecessary,  or 
would  be  ineffectual:  Swift  v.  Lar- 
rabee,  31  Conn.  225,  239  (dictum) ; 
Equitable  Guarantee,  etc.,  Co.  v. 
Donahoe  (Del.),  45  Atl.  583;  Dog- 
gett  v.  Hart,  5  Fla.  215,  58  Am.  Dec. 
464;  Hughes  v.  Hannah,  39  Fla.  365, 
22  South.  613  (bill  of  peace  does  not 
lie  to  quiet  title  against  numerous 
defendants  in  possession);  Penin- 
sula Const.  Co.  V.  Merritt,  90  Md. 
589,  45  Atl.  172;  Zahnhizer  v.  Hef- 
ner, 47  W.  Va.  418,  35  S.  E,  4;  Tri- 
bette  V.  Illinois  Cent.  E.  Co.,  70 
Miss.  182,  35  Am.  St.  Eep.  642,  19 
L,  R.  A.  660,  12  South.  32,  1  Keener 
Cas.  Eq.  Jur.  148,  2  Ames  Cas.  Eq. 
Jur.  74;  Ducktowu,  etc.,  Co.  v.  Fain, 
109  Tenn.  56,  70  S.  W.  813.  In 
Peninsula     Const.     Co.     v.     Merritt, 


supra,  it  was  held  that  equity  would 
not  take  jurisdiction  to  enjoin  nu- 
merous garnishment  procoedings 
against  the  complainant,  to  all  of 
which  he  had  the  same  defense,  that 
he  owed  nothing  to  the  common 
debtor.  In  Zahnhizer  v.  Hefner, 
supra,  the  court  refused  to  take 
jurisdiction  to  enjoin  several  attach- 
ments on  goods  claimed  by  the 
plaintiff,  who  was  not  a  party  to  the 
attachment  suits.  The  decision  is 
partly  rested,  however,  on  the  ade- 
quacy of  the  statutory  remedy  by 
which  the  plaintiff  might  reclaim  his 
property.  In  other  West  Virginia 
cases  the  jurisdiction  as  contended 
for  by  the  author  has  been  fully  rec- 
ognized. In  Equitable  Guarantee, 
etc.,  Co.  V.  Donahoe,  supra,  a  case 
of  the  fourth  class,  the  jurisdiction 
was  invoked  to  restrain  taxation; 
for  a  statement  of  the  case  see  post, 
§  266,  note.  The  opinion  in  Tribette 
V.  Illinois  Cent.  E.  Co.,  supra,  is  so 
sensational    in    many    of    its    state- 


§  264  EQUITY    JURISPRUDENCE.  478 

tion  of  these  cases  is  placed  in  the  foot-note,  where  it  is 
shown  that  with  respect  to  their  material  facts  they  are 
clearly  distinguishable  from  all  those  adjudications,  quoted 

peace/'  or  of  preventing  a  multiplicity  of  suits.  The  opinion  in  Marselis 
V.  Morris  Canal  Co.,  1  N.  J.  Eq.  31,  is  one  of  the  most  carefully  considered 
and  elaborate  presentations  of  this  restricted  and  negative  view  of  the 
doctrine  to  be  found  in  the  reports,  and  I  shall  therefore  quote  from  it 
at  some  length.  Many  separate  owners  of  distinct  tracts  of  land  along 
the  line  of  the  defendant's  canal  united  as  plaintiffs,  suing  on  behalf  of 
themselves  and  all  others,  etc.,  charging  that  the  defendant  entered  on 
their  separate  parcels  of  land  and  dug  a  canal,  without  peiTnission  or 
agreement,  and  without  making  any  compensation;  that  defendant  was  in- 
solvent. They  prayed  an  account  of  damages  for  the  injuries  done,  com- 
pensation for  the  lands  taken,  and  an  injunction  to  restrain  the  defendant 
from  occupying  or  using  their  lands  without  compensation.  Defendant 
demurred  to  the  whole  bill,  and  plaintiffs  moved  for  a  preliminary  injunc- 
tion, and  the  argument  of  both  came  on  together.  The  chancellor  said 
(pp.  35-39)  :  "The  complainants  are  several  owners  having  distinct  rights 
in  the  several  tracts  of  land  through  which  the  canal  passes.  The  injuries 
sustained  by  one  of  them  have  no  necessary  nor  natural  connection  with 
those  sustained  by  another.  Admitting  the  jurisdiction  of  the  court,  each 
of  these  complainants  might  sue  separately,  either  in  a  court  of  law  or  of 
equity,  without  consulting  with  any  other  one,  and  without  in  the  least 

ments,  and  has  been  so  frequently  that  the  plaintiffs  in  the  different 
reprinted,  that  it  appears  to  call  for  actions  are  wrongfully  seeking  to 
special  notice.  Campbell,  C.  J.,  recover  damages  by  their  several  ac- 
etates the  facts  as  follows:  "A  num-  tions,  all  of  which  grew  out  of  the 
ber  of  different  owners  of  property  same  occurrence,  and  depend  for 
in  the  town  of  Terry,  destroyed  by  their  solution  upon  the  same  ques- 
fire  from  sparks  emitted  by  an  en-  tions  of  fact  and  of  law.  Where- 
gine  of  the  appellee,  severally  sued  fore,  to  avoid  multiplicity  of  suits, 
in  the  circuit  court  to  recover  of  the  and  the  consequent  harassment  and 
appellee  damages  for  their  respec-  vexation,  all  of  the  said  plaintiffs 
live  losses  by  said  fire,  alleged  to  are  sought  to  be  enjoined  from 
have  resulted  from  the  negligence  prosecuting  their  different  actions, 
of  the  defendant.  While  these  ac-  and  to  be  brought  in  and  have  the 
tions  were  pending,  the  appellee  ex-  controversies  settled  in  this  one  suit 
hibited  its  bill  against  the  several  in  equity.  There  is  no  common  in- 
plaintiffs,  averring  that  no  liability,  terest  between  these  different  plain- 
as  to  it,  arose  by  reason  of  the  fire,  tiffs,  except  in  the  questions  of  fact 
which  arose,  not  from  any  negli-  and  law  involved."  Campbell,  C,  J., 
genee  or  wrong  of  it  or  of  its  ser-  asserts  that  on  the  facts  as  thus 
vants,  but  from  the  fault  of  others,  stated  "the  granting  and  maintain- 
for  which  it  is  not  responsible;  and  ing    the    injunction    are    fully    sus- 


479  TO    PREVENT    A    MULTIPLICITY    OF    SUITS.  §  264 

under  the  foregoing  paragraphs,  by  which  the  jurisdiction 
has  been  asserted  and  exercised,  so  that  there  is  no  conflict 
between  the  decisions  as  actually  made.     With  the  judicial 

degree  affecting  his  rights.  On  the  other  hand,  the  suit  is  brought  by  all 
of  them  against  one  common  defendant.  They  all  complain  of  injuries 
similar  in  their  character,  and  seek  a  similar  relief,  and  therefore  have  a 
common  object  in  view.  Complainants  allege  that  the  suit  is  brought  for 
the  benefit  of  all  land-owners  who  will  come  in  and  contribute.  Such  is 
the  complainants'  case.  Let  us  examine  some  of  the  leading  authorities  for 
the  principle  that  should  govern  it.  In  Bouverie  v.  Prentice,  1  Brown.  Ch. 
200,  Lord  Thurlow  held  that  where  a  number  of  persons  claim  one  right 
in  one  subject,  one  bill  may  be  sustained  to  put  an  end  to  suits  and  litiga- 
tion. That  was  the  case  of  a  bill  filed  by  the  lady  of  a  manor  against 
several  tenants  for  quitrents  due,  and  the  method  was  adopted  to  prevent 
multiplicity  of  suits.  But  it  was  not  considered  as  coming  within  the 
principle  laid  down  by  the  courts.  The  lord  chancellor  remarked  that  no 
one  issue  could  try  the  cause  between  any  two  of  the  parties  (defendant) ; 
and  he  could  not  conceive  upon  what  principle  two  different  tenants  of 
distinct  estates  should  be  brought  before  him  together  to  hear  each  other's 
rights  discussed.  In  Ward  v.  Duke  of  Northumberland,  2  Anstr.  469,  the 
court  says  that  the  cases  where  unconnected  parties  may  join  in  a  suit 
are,  where  there  is  one  common  interest  among  them  all,  centering  in  the 
point  in  issue  in  the  cause.     Lord  Redesdale,  in  Whaley  v.  Dawson,  2 

tained  by  Pomcroy  Eq.  Jur.,  Vol.  I,  correct:  See  avie,  §  25114.  The 
§  255  et  seq."  With  this  the  editor  opinion,  however,  consists  of  a 
agrees,  if  the  bill  really  presented  sweeping  denial  of  the  author's 
the  single  question,  a  denial  of  the  conclusions  as  to  classes  third  and 
complainant's  negligence.  But  it  fourth.  Says  the  learned  chief  jus- 
appears  from  the  briefs  of  counsel  tice:  "There  is  no  such  doctrine  in 
that  the  point  was  argued,  that  nu-  the  boohs  (!),  and  the  zeal  of  the 
merous  unrelated  issues  of  fact  were  learned  and  usually  accurate  writer 
presented,  which  the  suit  in  equity  mentioned,  to  maintain  a  theory,  has 
would  not  avail  to  lessen.  Neither  betrayed  him  into  error  on  this  sub- 
the  court  nor  the  reporter  enlightens  jeet.  .  .  .  Every  case  he  cited  to 
us  further  as  to  the  facts  of  the  support  his  text  will  be  found  to  be 
case;  but  it  is  evident  that  if  the  either  where  each  party  might  have 
complainant's  real  defense  to  the  resorted  to  chancery  or  been  pro- 
plaintiffs'  suits  was,  say,  eontribu-  eeeded  against  in  that  form,  or  to 
tory  negligence  on  the  part  of  the  rest  on  some  recognized  ground  of 
several  plaintiffs,  a  separate  issue  equitable  interference  other  than  to 
with  each  of  them  could  not  be  avoid  multiplicity  of  suits.  The 
avoided  by  removing  the  cases  to  a  cases  establish  this  proposition,  viz.: 
court  of  equity.  The  decision  of  the  Where  each  of  several  may  proceed 
court  would  then  be  unquestionably  or   be   proceeded   agaiust   in   equity, 


§  264  EQUITY    JURISPRUDENCE.  480 

opinion,  however,  it  is  otherwise.  Laying  out  of  view 
the  groups  of  cases  concerning  assessments,  and  taxes,  and 
public  burdens,  with  respect  to  which  there  has  been  so 

Sehoales  &  L.  367,  held  this  principle,  that  where  there  was  a  general 
right  claimed  by  the  bill  covering  the  whole  case,  the  bill  would  be  good, 
though  the  defendants  had  separate  and  distinct  rights;  but  if  the  subjects 
of  the  suit  were  in  themselves  perfectly  distinct,  a  demurrer  would  be 
sustained.  The  same  rule  is  recognized  in  Saxton  v.  Davis,  18  Ves.  72;  in 
Hester  v.  Weston,  1  Vern.  463;  and  in  Mayor  of  York  v.  Pilkington,  1 
Atk.  282.  In  Cooper's  Eq.  PI.  182,  this  rule  is  given :  'The  court  will  not 
permit  several  plaintiffs  to  demand  by  one  bill  several  matters  perfectly 
distinct  and  unconnected  against  one  defendant;  nor  one  plaintiff  to  de- 
mand several  matters  of  distinct  natures  against  several  defendants.'  And 
to  exemplify  the  rule,  the  following  case  is  given  from  2  Dick.  677 :  If  an 
estate  was  sold  in  lots  to  different  persons,  the  purchasers  could  not  join 
in  one  bill  against  the  vendor  for  a  specific  performance ;  for  each  party's 
case  would  be  distinct,  and  would  depend  upon  its  own  peculiar  circum- 
stances, and  there  must  be  a  distinct  bill  upon  each  contract.  Nor  could 
such  vendor,  on  the  other  hand,  file  one  bill  for  a  specific  performance 
against  all  the  purchasers.  Lord  Kenyon,  in  Birkley  v.  Presgrave,  1  East, 
227,  gives  the  same  illustration ;  and  adds  that,  in  general,  a  court  of  equity 
win  not  take  cognizance  of  distinct  and  separate  claims  of  different  per- 
sons in  one  suit,  though  standing  in  the  same  relative  situation.     In  the 

their  joinder  as  plaintiffs  or  defend-  presented  no  other  possible  ground 
ants  in  one  suit  is  not  objectionable;  of  jurisdiction;  Pollock  v.  Okolona 
but  this  is  a  very  different  question  Sav.  Inst.,  61  Miss.  293,  ante,  note 
from  that,  whether,  merely  because  to  §261,  Class  Fourth,  (I),  (c).  We 
many  actions  at  law  arise  out  of  the  have  already  shown  that  the  state- 
same  transaction  or  occurrence,  and  ment  and  proof  of  the  rules  of 
depend  on  the  same  matters  of  fact  equity  relating  to  joinder  of  parties 
and  law,  all  may  proceed  or  be  pro-  forms  a  vital  and  necessary  part  of 
ceeded  against  jointly  in  one  suit  in  the  author's  argument:  Ante,  note 
chancery;  and  it  is  believed  that  it  (c)  to  §  257.  In  regard  to  the  cases 
has  never  been  so  held,  and  never  selected  by  Campbell,  C.  J.,  for 
will  be,  in  cases  like  those  here  in-  special  animadversion  we  may  ob- 
volved,"  etc.  It  may  be  remarked,  serve:  that  if  Osborne  v.  Wisconsin 
in  passing,  that  the  language  itali-  Cent.  R.  Co.,  43  Fed.  824,  ante,  note 
cized  is  a  severe  reflection  upon  the  to  §  261,  Third  Class,  (I),  (a),  was 
learned  judge's  own  court,  which,  a  case  in  which  each  plaintiff 
only  nine  years  before,  rendered  a  "might  have  brought  his  separate 
decision,  concurred  in  by  this  same  bill  to  quiet  title,"  there  is  nothing 
judge,  adopting  the  author's  conclu-  in  the  opinion  of  Harlan,  J.,  from 
sions  and  applying  them  to  a  case  which  that  fact  may  be  inferred; 
which,  as  the   court  then  admitted,  that  in   Keese   v.   Denver,   10    Colo. 


481  TO    PEEVE  NT    A    MULTIPLICITY    OF    SUITS.  §  264 

much  antagonism  on  the  part  of  the  courts,  there  is  much 
in  these  opinions,  in  the  course  and  tendency  of  their  rea- 
soning, and  in  the  rules  which  they  lay  down  as  tests  of 

case  of  Brinkerhoff  v.  Brown,  6  Johns.  Ch.  139,  Chancellor  Kent  reviews 
the  leading  authorities,  and  comes  to  this  conclusion,  that  a  bill  filed 
against  several  persons  must  relate  to  matters  of  the  same  nature,  and 
having  a  connection  with  each  other,  and  in  which  all  the  defendants  are 
more  or  less  concerned,  though  their  rights  in  respect  to  the  general  sub- 
ject of  the  case  may  be  distinct."  The  chancellor  then  remarks  that  suits 
by  creditors,  legatees,  etc.,  depend  upon  the  principle  that  there  is  such  a 
privity  between  them  that  a  complete  decree  may  be  made  determining 
the  rights  of  all.  Also  cases  of  lord  and  tenants  concerning  the  common 
rights,  of  parson  and  parishioners  concerning  a  modus,  and  some  others, 
are,  as  he  asserts,  governed  by  the  same  notion.  He  proceeds :  "These 
last  may,  with  more  propriety,  be  classed  under  that  branch  of  equity 
which  relates  to  bills  of  peace.  These  bills  have  no  affinity  with  the  one 
now  before  the  court.  It  is  true,  the  legitimate  object  of  them  is  to  avoid 
a  multiplicity  of  suits;  and  the  ancient  practice  of  the  court  was,  not  to 
interfere  until  the  legal  right  had  first  been  tried  at  law  in  an  individual 
case;  after  which  the  court  of  equity  would  interfere  to  quiet  that  right 
by  injunction.  This  is  not  a  bill  of  peace,  and  I  believe  it  has  not  been 
contended  that  a  land-owner  in  the  county  of  Warren  or  ]\Iorris,  not  com- 
ing in  and  making  himself  a  party  to  this  suit,  would  be  in  any  wise 

112,  15  Pac.  825,  ante,  note   (b)   to  adequate;    that   in   New   York,   etc., 

§  260,  the  demurrer  was  both  to  the  E.  R.  Co.  v.  Schuyler,  17  N.  Y.  592, 

misjoinder     and     to     the     want     of  the  court  expressed  the  opinion  that 

equity    in    the    complaint,    and    in  the  suit  could  be  sustained  as  a  bill 

overruling  it  the  text  was  cited  on  of  peace,  even  if  there  were  no  other 

both    grounds;    that    in    Carlton    v.  element  of  equity  jurisdiction.     But 

Newman,     77     Me.     408,    the     court  the  author's  critic  even  ventures  the 

states  in  the  plainest  and  most  em-  astounding    assertion    that    Sheffield 

phatic   manner   that  illegality  is  no  Water   Works   v.   Yeomans,   L.   R.   2 

ground    for   enjoining   a   tax   at   the  Ch.  8,  aiite,  note  to  §  256,  "furnishes 

suit  of  the  single  plaintiff,  and  bases  no  sort  of  support  to  the  text  of  the 

the   injunction   squarely   on   the   au-  author."     The  case  in  question,  con- 

thor's    text;    that    in    De    Forest    v.  stantly    relied    on    as    one    of    the 

Thompson,  40  Fed.  375,  Jackson,  J.,  strongest   authorities   in   support    of 

and  Harlan,  J.,  so  far  from  holding  the  doctrine,  is  too  plain  and  simple 

that  "a  bill  might  have  been  exhib-  to     admit     of     misconception.     The 

ited    against    each    defendant    sepa-  learned  chief  justice  admits  that  the 

rately,"  concede  that  as  against  each  author's    text    has    frequently    been 

defendant,      separately      considered,  cited   or  quoted  by   the   courts;   but 

the  remedy  at  law  would  have  been  claims  that  all  these  cases  are  "re- 
1—31 


§  264  EQUITY    JURISPRUDENCE.  482 

the  jurisdiction,  which  conflicts  directly  and  unmistakably 
with  the  doctrines  and  rules  necessarily  contained  in 
numerous    well-settled    and    well-known    authorities,    both 

affected  by  it.  I  think  the  principle  laid  down  in  Cooper  is  the  correct 
one,  that  it  is  fairly  deducible  from  the  cases,  and  must  govern  this.  Ac- 
cording to  that  principle,  I  feel  constrained  to  say  that  the  bill  cannot  be 
sustained.  There  is  no  kind  of  privity  between  these  complainants;  there 
Is  no  general  right  to  be  established  as  against  the  defendant,  except  the 
general  right  that  the  wrong-doer  is  liable  to  answer  for  his  misdeeds  to 
the  injured  party,  which  surely  does  not  require  to  be  established  by  such 
a  proceeding  as  this.  The  utmost  that  can  be  said  is,  that  the  defendant 
stands  in  the  same  relative  position  to  all  these  complainants.  There  is 
no  common  interest  in  them  centering  in  the  point  in  issue  in  the  cause, 
which  is  the  rule  in  2  Anstruther.  Nor  is  there  any  general  right  claimed 
by  the  bill  covering  the  whole  case,  which  is  the  principle  adopted  by  Lord 
Redesdale.  Chancellor  Kent's  rule  is  quite  as  broad  as  any  authority  will 
warrant,  but  it  is  not  broad  enough  for  the  case  now  before  the  court.  It 
requires  that  a  bill  against  several  persons  must  relate  to  matters  of  the 
same  nature,  and  having  a  connection  with  each  other,  and  in  which  all 
the  defendants  are  more  or  less  concerned."  In  whatever  manner  we  may 
regard  the  general  course  and  tendency  of  the  chancellor's  reasoning  in  this 
opinion,  it  is  very  evident  that  the  actual  decision  made  upon  the  facts 
does  not  in  tho  slightest  degree  conflict  with  any  of  the  cases  heretofore 

solvable  upon  other  grounds  of  equi-  closed,      against      the      unconnected 

table     interference."     An     examina-  claims    of    numerous    suitors;     and 

tion  of  the  recent  cases  cited,  ante,  afterwards  was  tacitly  overruled  in 

in  note  to  §  261,  will  show  that  this  Hightown  v.  Mobile,  J.  &  K.  C.  E. 

claim    is    true    of    only    a    few    of  Co.    (Miss.),   36   South.   82,  and  Tis- 

these  decisions.  dale    v.    Insurance     Co.     of     N.     A. 

The  opinion  in  the  "Tribette  case"  (Miss.),  36  South.  568,  cases  of  the 

was  followed  in  Duckworth,  etc.  Co.  "third    class,"    in    neither    of    which 

V.  Fain,  109  Tenn.  56,  70  S.  W.  813;  was  there   any  possible   pretense   of 

but  in  the  latter  case  the  exercise  of  connection     among     the     numerous 

the  jurisdiction  would   clearly  have  plaintiffs,   except   with   reference   to 

been  ineffectual,  within  the  principle  the    questions   of   fact   and   law   in- 

of     §2511^,    ante.     The    Mississippi  volved. 

court    has    since    abandoned    its    ex-  The   Tribette    case   has   had   some 

treme  position;   the   "Tribette   ease"  following     in     the     thirteen     years 

was    first    distinguished    in    Illinois  elapsing  since  the  preparation  of  the 

Central  R.  Co.  v.  Garrison,  81  Miss.  third  edition  of  this  work.     It  is  be- 

257,  95  Am.  St.  Rep.  469,  32  South.  lieved  that  all  those  cases,  however, 

996,  where  the  plaintiff  successfully  are  readily  distinguishable  as  being 

asserted  in  equity  a  "common  right,"  governed  by  the  principles  explained 

the   character    of   which   is   not   dis-  ante,  in   §§  2511/^   and  251%.     Thus, 


483 


TO    PREVENT    A    MULTIPLICITY    OF    SUITS. 


§2G4 


Englisli  and  American.  All  attempt  to  reconcile  or  to  pro- 
nounce upon  tliis  contradiction  is  postponed  to  a  subsequent 
paragraph. 

quoted,  in  which  the  jurisdiction  has  beeh  exercised.  The  facts  of  this 
case  clearly  distinguish  it  from  each  and  all  of  them.  Although  on  the 
first  superficial  view  there  may  appear  to  be  the  same  community,  since 
the  single  defendant  was  all  the  time  prosecuting  one  enterprise,  viz.,  con- 
structing its  canal,  yet  in  the  case  of  each  plaintiff  there  was  a  separate, 
distinct  trespass  upon  his  land;  the  claim  of  each  land-owner  resulted  from 
a  separate  injury  to  his  own  property,  unconnected  with  the  injuries  done 
to  the  others.  This  is  the  vital  distinction  in  the  facts  which  removes 
this  case  from  the  operation  of  the  doctrine.  In  the  group  of  decisions 
where  many  land-owners  have  united  in  a  suit  to  restrain  a  trespass  or  a 
nuisance,  such  as  a  diversion  of  water  from  their  mills,  or  an  erection 
blocking  up  a  passage  to  all  their  buildings,  the  one  wrongful  act  of  the 
defendant,  una  flatu,  did  the  injury  complained  of  to  the  land  of  each 
plaintiff;  in  that  group  where  many  lot-owners  united  to  obtain  relief 
from  an  illegal  assessment,  the  one  official  act  of  the  municipality  placed 
an  unlawful  burden  on  the  lot  of  each  plaintiff,  and  by  this  single  wrong 
all  of  the  lot-owners  sustained  their  individual  but  common  injuries.  The 
same  is  true  in  the  suits  by  tax-payers  to  be  relieved  from  an  illegal  tax 
or  public  debt.  In  the  present  case,  the  transaction  was  otherwise,  both 
in  form  and  in  its  nature.     There  was  no  single  wrongful  act  of  the  canal 


in  Kansas  City  Southern  E.  Co.  v. 
Quigley,  181  Fed.  190,  the  complain- 
ant railroad  company  claimed  to  be 
threatened  with,  numerous  injunc- 
tion suits  and  other  suits  growing 
out  of  its  proposed  removal  of  its 
shops  and  divisional  point.  The 
court  points  out,  however  (p.  203), 
that  no  multiplicity  of  suits,  on  com- 
plainant's showing,  was  reasonably 
to  be  apprehended;  the  case,  there- 
fore,  falls  within   §251%. 

The  case  of  Vandalia  Coal  Co.  v. 
Lawson,  43  Ind.  App.  226,  87  N.  E. 
47,  like  the  Hopkins  case  in  Ala- 
bama (ante,  §  261,  note,  "Class 
Fourth,"  (I),  (a),  arose  from  a 
mine  explosion.  In  this  case  the 
complainant  company  prayed  that 
the  numerous  actions  for  damages 
arising  from  the   explosion  be   con- 


solidated and  tried  as  one  case  in 
equity.  It  is  obvious  that  such  a 
bill  falls  squarely  within  the  con- 
demnation of  the  principle  of 
§  2511/^,  ante.  It  is  one  thing  for 
A  to  seek  an  injunction  against  nu- 
merous actions,  all  presenting  the 
common  defense,  A's  lack  of  negli- 
gence; but  it  is  an  entirely  different 
thing,  unwarranted  by  the  decisions 
or  by  the  author's  text,  for  A  to  ask 
that  on  his  failure  to  establish  his 
defense,  the  case  be  retained  for  the 
purpose  of  establishing,  in  a  court  of 
equity,  numerous  claims  of  damages 
for  personal  injuries  against  A,  each 
claim  involving  a  separate  and  dis- 
tinct issue  as  to  the  character  and 
amount  of  the  claimant's  injury. 
"A  court  of  equity  cannot  exercise  its 
jurisdiction  ...  in  Cases  where   the 


§2G5 


EQUITY    JURISPRUDENCE. 


484 


§  265.    In  Cases  of  Illegal  Taxes  and  Public  Burdens. — I 

pass  to  cases  concerning  local  assessments,  general  taxes, 
and  public  debts  or  burdens.  The  line  of  decisions  lias 
already  been  mentioned,  where,  upon  an  equity  suit  brought 
in  most  instances  by  one  proprietor,  to  restrain  or  to  set 
aside  some  illegal  assessment  or  tax  which  imposed  a  lien 
or  liability  upon  the  plaintiff  and  others  in  the  same  posi- 
tion, the  court  has  held  that  it  would  exercise  its  jurisdic- 
tion and  grant  the  relief  only  where  such  judicial  action 

company,  which  by  its  comprehensive  nature  produced  the  same  injury 
upon  the  land  of  each  proprietor.  On  the  contrary,  the  company  com- 
mitted a  separate  and  wholly  independent  trespass  upon  the  land  of  each 
by  itself,  and  these  trespasses  were  not  simply  distinct  in  contemplation  of 
law,  but  they  were  different  in  their  form,  nature,  and  extent.  It  neces- 
sarily follows,  therefore,  that  thei-e  was  not  among  the  plaintiffs  even  any 
community  of  interest  in  the  relief  sought,  nor  in  the  questions  at  issue,, 


plaintiff  invoking  such  jurisdiction 
has  not  any  prior  existing  cause  of 
action"  or  defense:  Ante,  §  250,  and 
note  (b).  It  appears  (see  end  of 
opinion)  that  the  complainant  did 
not  distinctly  aver  its  absence  of 
liability  to  the  numerous  claimants. 
"Nothing  short  of  a  specific  state- 
ment of  facts  establishing,  without 
aid  of  presumptions,  the  absolute 
non-liability  of  appellant  to  any  of 
the  appellees  in  any  event,  can  be 
accepted  as  a  basis  upon  which  to 
invoke  equitable  action."  This  dis- 
poses of  the  case;  and  the  general 
discussion  of  the  doctrine  is  entirely 
superfluous.  It  should  be  noticed 
that  the  same  court,  in  the  follow- 
ing year,  recognized  the  case  as  sup- 
porting the  jurisdiction  to  prevent  a 
multiplicity  of  suits  (Gray  v.  Fos- 
ter, 46  Ind.  App.  149,  92  N.  E.  7). 
It  is  regrettable  that  the  court  is 
guilty  of  such  inaccuracies  as  the 
statement  that  "the  case  at  bar 
comes  within  the  third  class"  of  the 
author's  classification;   and  that  the 


present  editor  "acknowledges  that 
the  decision  of  the  court  [in  the 
Tribette  case]  was  correct." 

The  facts  in  the  Hopkins  case, 
and  the  decision  of  the  court  on  the 
first  appeal,  Southern  Steel  Co.  v. 
Hopkins,  157  Ala.  175,  131  Am.  St. 
Rep.  20,  16  Ann.  Cas.  690,  20  L.  R.  A. 
(N.  S.)  848,  47  South.  274,  have  al- 
ready been  stated:  Ante,  §  261,  note, 
"Class  Fourth,"  (I),  (a).  On  the 
second  appeal  it  appears  that  the 
complainant  by  its  amended  bill, 
prayed  that  in  case  it  failed  to  es- 
tablish its  common  defense,  the  court 
should  determine  the  extent  of  its 
liability  to  the  numerous  claimants. 
The  case,  therefore,  is  on  all-fours 
with  the  Vandalia  Co.  case,  on 
which  it  largely  relies.  It  was 
wholly  unnecessary  for  the  court,  in 
order  to  support  its  decision,  to  re- 
ject the  author's  conclusions  and  to 
confine  the  jurisdiction  to  cases  in- 
volving "a  common  title  to,  or  a 
common  interest  in,  the  subject-mat- 
ter involved."     The  bill  in  Eoanoke 


485 


TO    PREVENT   A    MULTIPLICITY    OF    SUITS. 


265 


was  necessary  to  prevent  a  multiplicity  of  suits,  or  to  re- 
move a  cloud  from  title,  or  to  avoid  irreparable  mischief. 
These  decisions  therefore  assort  affirmatively  that  a  court 
of  equity  may  relieve  from  illegal  assessments  and  taxes 
on  the  ground  of  preventing  a  multiplicity  of  suits;  but 
they  make  no  attempt  to  determine  when  or  under  what 
circumstances  such  ground  for  its  interference  would  exist ; 
and  they  all  hold  that  the  mere  facts  of  the  assessment  or 
tax  being  illegal  and  of  its  creating  an  illegal  personal  lia- 

whieh,  it  is  conceded,  must  exist  in  order  that  the  court  may  interfere,  and 
which  did  exist  in  all  the  groups  of  cases  heretofore  cited.  The  decision 
of  the  chancellor  was  therefore  unquestionably  correct;  but  I  cannot  ac- 
cept the  whole  course  and  tenor  of  his  reasoning  as  equally  correct.  It  is 
the  case,  not  uncommon,  of  a  judge  who  seeks  to  sustain  a  foregone  con- 
clusion by  giving  an  imperfect  consti-uction  or  improper  bias  to  the 
authorities  which  he  cites.®  The  very  recent  case  of  Board,  etc.,  v.  Deyoe, 
77  N.  Y.  219,  is  directly  contrary  to  County  of  Lapeer  v.  Hart,  Harr. 
(Mich.)  157. 


Guano  Co.  v.  Saunders,  173  Ala.  347, 
35  L.  R.  A.  (N.  S.)  491,  56  South. 
198,  was  subject  to  the  same  fatal 
defect — an  attempt  to  enjoin  numer- 
ous damage  suits  for  the  purpose  of 
consolidating  them  in  one  chancery 
trial.  The  opinion  admits  that  the 
author's  text  has  been  followed  in, 
probably,  a  majority  of  the  cases. 
A  series  of  similar  attempts  at  con- 
solidation of  damage  suits,  in  Ala- 
bama and  in  Mississippi,  are  listed 
ante,  in  note  (h),  §  251^^. 

The  ease  of  Cumberland  Tele- 
phone &  Telegraph  Co.  v.  "V^'illiam- 
son,  101  Miss.  1,  57  South.  559,  in 
which  the  Tribette  case  was  rein- 
stated as  the  law  for  Mississippi, 
was  one  in  which  the  complainant 
had  no  common  defense  (so  far  as 
the  report  discloses)  to  the  actions 
sought  to  be  enjoined,  and  must, 
therefore,  fail,  on  any  theory  of  the 
jurisdiction;  and  the  same  is  true, 
as  is  pointed  out  by  the   court,  of 


the  recent  decision,  Hamilton  v.  Ala- 
bama Power  Co.,  195  Ala.  438,  70 
South.  737. 

For  some  highly  pertinent  obser- 
vations on  the  extraordinary  vacil- 
lation of  the  Mississippi  and  Ala- 
bama courts,  owing  to  their  "great 
confusion  of  thought  upon  the 
subject  and  a  failure  to  distin- 
guish the  cases  to  which  Pomeroy's 
rule  is  applicable  from  the  cases  to 
which  it  is  not  applicable,"  see. 
opinion  of  Rogers,  Cir.  J.,  in  Watson 
V.  Huntington,  215  Fed.  472,  486, 
131  C.  C.  A.  520.  See,  also,  25  Har- 
vard Law  Eeview   (1912),  p.  559. 

Cases  of  the  Third  Class  Denying 
the  Jurisdiction. — See  yost,  §  267, 
note. 

§  264,  (c)  For  many  further  in- 
stances where  the  court  refused  to 
interfere  because  there  was  no  "com- 
munity of  interest  in  the  relief 
sought,  nor  in  the  questions  at  is-- 
sue,"  see  ante,  §  251%,  and  notes. 


§  266  EQUITY   JURISPRUDENCE.  486 

bility  or  unlawful  lien,  and  of  its  affecting  numerous  tax- 
payers and  owners  in  the  same  manner,  do  not  furnish  the 
ground  for  equitable  interference,  nor  bring  the  case  within 
the  jurisdiction  based  upon  the  prevention  of  a  multiplicity 
of  suits.i  ^ 

§  266.  The  cases,  however,  to  which  I  now  refer  go  much 
further  than  these.  There  are  well-considered  adjudica- 
tions of  several  courts,  certainly  among  the  ablest  courts 
of  this  country,  which  hold  that,  as  a  general  rule,  or  except 
under  very  special  circumstances,  a  court  of  equity  will  not 
exercise  its  jurisdiction  and  grant  relief  upon  the  doctrine 
of  preventing  a  multiplicity  of  suits  in  a  suit  brought  by  a 
single  tax-payer  and  property  owner,  or  by  one  or  more 
suing  on  behalf  of  himself  and  others,  or  by  many  indi- 
viduals united  as  co-plaintiffs  to  restrain  the  enforcement 
of,  or  to  set  aside  and  annul,  or  to  be  otherwise  relieved 
from,  any  local  municipal  assessment,  or  any  tax,  purely 
personal  or  made  a  lien  on  property,  laid  by  a  county, 
town,  city,  or  other  district,  or  any  official  act,  proceeding, 
or  transaction  of  a  county,  town,  city,  or  district,  whereby 

§  265,  1  See  ante,  §  259 ;  Mayor,  etc.,  of  Brooklyn  v.  Meserole,  26  Wend. 
132, 140 ;  Haywood  v.  Buffalo,  14  N.  Y.  534,  541 ;  Guest  v.  Brooklyn,  69  N.  Y. 
506,  512,  513;  Bouton  v.  Brooklyn,  15  Barb.  375,  387,  392;  Ewing  v.  St. 
Louis,  5  Wall.  413,  418 ;  Dows  v.  Chicago,  11  Wall.  108,  110,  111 ;  Scribner 
V.  Allen,  12  Minn.  148;  Minnesota  Oil  Co.  v.  Palmer,  20  Minn.  468; 
While  Sulphur  Springs  Co.  v.  Holley,  4  W.  Va.  597;  Harkness  v.  Board 
of  Pub.  Works,  1  McAr.  121,  131-133.  It  should  be  observed  that  almost 
aU  of  these  cases,  I  believe  with  hardly  an  exception,  are  avowedly  de- 
cided upon  the  authority  of  the  opinion  given  in  Mayor  v.  Meserole,  26 
Wend.  132,  and  the  other  New  York  cases  following  and  adopting  it. 

§265,  (a)  Cited,  Strenna  v.  Mont-  108,  22  Am.  St.  Rep.  345;  Wilkerson 

gomery,   86   Ala.  340,   5   South.   115.  v.  Walters,  1  Idaho,  564;  Bradtsh  v. 

See,       also,       Schulenberg-Boeckeler  Lucken,  38  Minn.  186,  36  N.  W.  454; 

Lumber   Co.   v.   Town    of    Hayward,  Coulson    v.    Harris,    43    Miss.     728, 

20     Fed.     422     (distinguished     ante,  754  ff.;  Hoboken  L.,  etc.,  Co.  v.  City 

§2511/2);     People's     Nat.     Bank     v.  of  Hoboken,  31  N.  .J.  Eq.  462;  Dyer 

Marye,    107    Fed.    570;    Murphy    v.  v.  School  District,  61  Vt.  96,  17  Atl. 

City  of  Wilmington,  6  Houst.  (Del.)  788. 


487  TO    PREVENT    A    MULTIPLICITY    OF    SUITS.  §  266 

a  public  indebtedness  is  or  would  be  created,  and  the  bur- 
den of  taxation  is  or  would  be  enhanced,  upon  the  ground 
that  such  assessment,  tax,  official  proceeding,  or  public  debt 
was  illegal,  and  either  voidable  or  void.  These  cases  there- 
fore present  a  direct  conflict  of  judicial  opinion  with  those 
quoted  in  the  preceding  paragraphs.  The  most  important 
reasons  given  by  the  courts  in  support  of  the  general  con- 
clusion which  they  all  reach  are  placed  in  the  accompany- 
ing foot-note.^  ^ 

§  266,  1 1  have  arranged  these  cases  into  classes  according  to  their  sub- 
ject-matter; and  those  in  each  class,  wherever  possible,  according  to  their 
forms,  viz.,  those  brought  by  or  on  behalf  of  numerous  plaintiffsy  and  those 
by  a  single  plaintiff  suing  alone. 

Cases  concerning  some  public  official  action  not  directly  involving  taxa- 
tion :  Doolittle  v.  Supervisors,  18  N.  Y.  155 ;  Roosevelt  v.  Draper,  23  N.  Y. 
318. 

Cases  concerning  local  assessments  by  numerous  lot-owners:  Dodd  v. 
Hartford,  25  Conn.  232,  238 ;  Howell  v.  City  of  Buffalo,  2  Abb.  App.  412, 
416;  Bouton  v.  Brooklyn,  15  Barb.  375,  387,  392-394. 

Cases  concerning  taxes  or  proceedings  which  would  create  a  public  debt, 
and  thus  increase  taxation, — 1.  By  numerous  tax-payers:  Youngblood  v. 
Sexton,  32  Mich.  406,  20  Am.  Rep.  654;  Sheldon  v.  School  District,  25 
Conn.  224,  228;  Harkness  v.  Bd.  of  Pub.  Works,  1  McAr.  121,  127-133; 
Kilbourne  v.  St.  John,  59  N.  Y.  21,  27,  17  Am.  E-ep.  291;  Ayres  v.  Law- 
rence, 63  Barb.  454;  Tift  v.  Buffalo,  1  Thomp.  &  C.  150;  Comins  v.  Super- 
visors, 3  Thomp.  &  C.  296;  Barnes  v.  Beloit,  19  Wis.  93;  Neweomb  v.  Hor- 
ton,  18  Wis.  566,  568,  569;  Cutting  v.  Gilbert,  5  Blatchf.  259,  261-263. 
2.  By  a  single  tax-payer:  Phelps  v.  Watertown,  61  Barb.  121,  123;  Ayres 
V.  Lawrence,  63  Barb.  454;  White  Sulphur  Springs  Co.  v.  Holley,  4  W.  Va. 

§266,  (a)  The  recent  case  of  volved  in  a  multiplicity  of  suits  if 
Equitable  Guarantee  &  T.  Co.  v.  it  paid  tlie  tax.  Nicholson,  Ch.,  re- 
Donahoe  (Del.),  45  Atl.  583,  is  note-  ferring  to  this  chapter,  but  dotlin- 
worthy  for  its  statement  of  those  ing  to  discuss  the  scope  of  the  doe- 
motives  of  public  policy  which,  in  trine  here  laid  down,  bases  his  re- 
many  states,  serve  to  prevent  the  fiisal  of  relief  on  several  grounds; 
operation  of  the  jurisdiction  in  mat-  viz.,  (1)  that  the  equitable  jurisdic- 
ters  of  taxation.  The  complainant,  tion  in  Delaware  is  restricted  by  the 
a  trust  company,  sought  to  restrain  constitution  to  cases  where  there  is 
the  collection  of  an  alleged  illegal  not  sufficient  remedy  by  common  law 
personal  tax,  on  the  ground  that  it  or  statute;  (2)  that  the  complainant 
was  trustee  or  guardian  in  a  large  stood  in  no  real  danger  of  repeated 
number  of  estates  and  would  be  in-  litigation,    as   it   was   probable    that 


i2G7 


EQUITY    JURISPRUDENCE. 


488 


§  267.  Summary  of  Conclusions. — The  theories  concern- 
ing the  doctrine  advocated  by  different  judges,  and  the  con- 
chisions  reached  by  different  decisions,  have  been  so  fully 
explained,  compared,  and  examined  in  the  accompanying 
foot-notes,  that  I  only  need  state  here  in  the  text  the  propo- 

597.  The  cases  of  Doolittle  v.  Supervisors,  18  N.  Y.  155,  and  Roosevelt 
V.  Draper,  23  N.  Y.  318,  are  in  some  respects  leading.  They  have  exerted 
a  marked  influence,  and  have  even  been  controlling  upon  many  of  the  sub- 
sequent decisions,  but,  in  my  opinion,  through  a  misapprehension  of  their 
true  significance  and  effect,  since  they  really  have  no  legitimate  connection 
"whatever  with  the  equitable  jurisdiction  based  upon  the  prevention  of  a 
multiplicity  of  suits.  The  rationale  of  the  decision — the  ratio  decidendi — in 
each  consisted  solely  in  motives  of  public  policy  and  governmental  expedi- 
ency. They  hold  that  vphen  local  officers,  as  of  a  county  or  a  city,  having 
quasi  legislative*and  administrative  functions,  do  some  official  act  which  is 
illegal  or  in  excess  to  their  powers,  an  individual  citizen,  who  suffers  thereby 
only  the  injuries  which  are  sustained  in  comxaon  by  all  other  members  of 
the  community, — that  is,  who  suffers  no  special  injury,  and  nothing  which 


the  tax  collector  would  abide  by  the 
result  of  a  single  suit  at  law;  quot- 
ing Fellows  V.  Spaulding,  141  Mass. 
92,  6  N.  E.  549,  and  Express  Co.  v. 
Seibert,  44  Fed.  315;  (3)  motives  of 
public  policy.  The  chancellor  ob- 
serves with  much  force,  "As  society 
becomes  more  and  more  complex, 
and  interests  become  more  and  more 
interlaced,  the  value  and  necessity 
of  equity's  preventive  remedies  be- 
comes greater.  But,  just  as  their 
beneficent  possibilities  have  in- 
creased in  consequence  of  the  mag- 
nitude of  the  evils  to  be  averted  by 
their  legitimate  use,  so  in  exact  pro- 
portion has  the  possible  mischief  in- 
creased that  may  be  caused  by  their 
illegitimate  use.  The  English  and 
American  equitable  jurisprudence  is 
a  unique  system;  a  complex  inter- 
weaving of  principle  and  precedent, 
of  reason  and  experience.  It  has 
progressed  by  slow  and  careful 
steps,  guided  always  by  careful  ob- 
servation   of    the    practical    conse- 


quences of  what  had  been  done  al- 
ready. And  in  no  department  has 
the  adherence  to  precedent  been  so 
marked,  in  no  sphere  of  action  does 
it  behoove  the  equity  judge  to  be  so 
careful  'to  keep  within  the  ancient 
merestones,'  as  when  there  is  ques- 
tion of  wielding  the  tremendous 
power  of  the  injunction  process." 
The  chancellor  distinguishes  the 
case  of  Cummings  v.  Bank,  101  U.  S. 
153,  ante,  note  to  §  261,  on  several 
grounds,  and  cites  many  cases  deny- 
ing the  jurisdiction  to  restrain  il- 
legal personal  taxes. 

U.  S.  Kev.  Stats.,  §  3224,  provides 
that  no  suit  to  restrain  the  assess- 
ment or  collection  of  any  tax  shall 
be  maintained  in  anv  court.  The 
fact,  therefore,  that  many  suits 
would  have  to  be  brought  at  law  to 
recover  taxes  paid  under  an  uncon- 
stitutional statute  did  not  warrant 
an  injunction:  Dodge  v.  Osborn,  240 
U.  S.  118,  60  L.  Ed.  557,  36  Sup.  Ct. 
275. 


489  TO   PREVENT    A    MULTIPLICITY    OF    SUITS.  §  267 

sitions  as  to  the  extent,  and  operation  of  the  doctrine  which, 
in  my  opinion,  appear  to  be  supported  by  principle  and  by 
authority.  With  respect  to  cases  of  the  first  and  the  second 
classes,  where  the  whole  judicial  controversy  is  always  be- 
ds not  also  suffered  alike  by  all  other  citizens  of  the  district, — has  no  cause 
of  action  whatever,  either  legal  or  equitable,  no  right  to  any  remedy  from 
a  court  of  justice.  His  only  relief  is  an  appeal  to  the  legislature  to  ob- 
tain, if  possible,  a  correction  of  the  wrong,  or  an  exercise  of  the  elective 
franchise,  by  which  perhaps  other  and  better  officers  may  be  chosen.  Cer- 
tain passages  of  the  opinions  may,  when  isolated  from  their  context,  seem 
to  go  some  further;  but  this  is  the  true  force  and  effect  of  these  cele- 
brated cases.  No  question  could  arise  whether,  under  such  circumstances, 
many  citizens  could  unite  as  co-plaintiffs,  or  one  could  sue  on  behalf  of 
others,  since  no  one  had  any  right  which  a  court  of  justice  could  recognize. 
I  have  thus  explained  the  true  value  of  these  decisions,  because  they  obvi- 
ously lie  at  the  foundation  of  many  of  the  cases  cited  in  this  note,  in 
which  courts  have  pronounced  against  the  claims  of  tax-payers.  That  they 
really  differ  most  essentially,  in  their  most  vital  principle,  from  these  lat- 
ter cases  is  evident  from  the  fact  universally  conceded  that  a  tax-payer 
upon  whom  an  illegal  tax  has  been  imposed  has  some  cause  of  action,  some 
remedial  right;  he  has,  at  least,  the  right  to  maintain  an  action  at  law  to 
recover  damages  when  an  illegal  tax  has  been  enforced.  There  is  there- 
fore a  fundamental  difference  between  him  and  the  citizen  mentioned  in 
Doolittle  V.  Supervisors,  18  N.  Y.  155,  and  Roosevelt  v.  Draper,  23  N.  Y. 
318 ;  and  the  principle  established  by  those  cases  has  no  legitimate  applica- 
tion to  the  questions  concerning  the  equitable  jurisdiction  to  grant  relief 
to  a  body  of  tax-payers. 

In  Howell  v.  Buffalo,  2  Abb.  App.  412,  416,  it  was  held  that  a  suit  by 
numerous  owners  of  separate  lots  to  set  aside  an  illegal  assessment  does 
not  come  within  the  equity  jurisdiction  to  prevent  a  multiplicity  of  suits; 
the  plaintiffs  cannot  unite  in  an  equitable  action  merely  to  avoid  the  neces- 
sity of  separate  actions.  The  court  gave  the  following  theory  of  the 
doctrine  as  the  reason  for  their  conclusion :  "It  is  not  a  case  for  the  appli- 
cation of  the  rule  for  the  prevention  of  a  multiplicity  of  suits.  No  one  of 
the  plaintifs  is  threatened  with  many  suits  or  much  litigation."  I  need 
only  remark,  that  if  this  test  of  the  doctrine  be  correct,  then  many  English 
and  American  judges  have  often  fallen  into  grievous  error.  In  Dodd  v. 
Hartford,  25  Conn.  232,  238,  a  similar  suit  upon  similar  circumstances, 
the  same  ruling  was  made,  on  the  ground  that  each  plaintiff  had  an  ade- 
quate remedy  at  law. 

Youngblood  v.  Sexton,  32  Mich.  400,  410,  20  Am.  Rep.  054,  was  a  suit 
by  numerous  tax-payers  to  enjoin  the  collection  of  a  personal  tax  claimed 


§  267  EQUITY    JURISPRUDENCE.  490 

twecn  one  distinct  partj^  complaining  and  one  party  defend- 
ant, there  is  no  substantial  disagreement;  the  rule  has  been 

to  be  illegal.  Held  to  be  settled  in  Michigan  that  in  case  of  such  a  per- 
sonal tax  equity  has  no  jurisdiction  to  restrain  its  collection,  even  if  illegal, 
the  ordinary  remedy  by  action  at  law  being  adequate.  Cooley,  J.,  said 
(p.  410)  :  ''The  jurisdiction  cannot  be  rested  on  the  doctrine  of  preventing 
a  multiplicity  of  suits,  because  the  principles  that  govern  that  jurisdiction 
have  no  application  to  this  ease.  It  is  sometimes  admissible  when  many 
parties  are  alike  affected  or  threatened  by  one  illegal  act,  that  they  shall 
unite  in  a  suit  to  restrain  it;  and  this  has  been  done  in  this  state  in  the 
case  of  an  illegal  assessment  of  lands :  Scofield  v.  Lansing,  17  Mich.  437. 
But  the  cases  are  very  few  and  veiy  peculiar,  unless  each  of  the  complain- 
ants has  an  equitable  action  on  his  own  behalf.  Now,  the  nature  of  this 
case  is  such  that  each  of  these  complainants,  if  the  tax  is  invalid,  has  a 
remedy  at  law,  which  is  as  complete  and  ample  as  the  law  gives  in  any 
other  cases.  He  may  resist  the  sheriff's  process  as  he  might  any  other 
trespass;  or  he  may  pay  the  money  under  protest,  and  at  once  sue  for 
and  recover  it  back.  But  no  other  complainant  has  any  joint  interest  with 
him  in  resisting  this  tax.  The  sum  demanded  of  each  is  distinct  and  sepa- 
rate, and  it  does  not  concern  one  of  the  complainants  whether  another  pays 
or  not.  All  the  joint  interest  the  parties  have  is  a  joint  interest  in  a 
question  of  law;  just  such  an  interest  as  might  exist  in  any  ease  where 
separate  demands  are  made  of  several  persons.  [Gives  one  or  two  ex- 
amples.] We  venture  to  say  that  it  would  not  be  seriously  suggested  that 
a  common  interest  in  any  such  question  at  law,  when  the  legal  interests  of 
the  parties  were  wholly  distinct,  could  constitute  any  ground  of  equitable 
jurisdiction,  where  the  several  controversies  affected  by  the  question  were 
purely  legal  controversies.  Suits  do  not  become  of  equitable  cognizance 
because  of  their  number  merely.  This  was  afiinned  in  Lapeer  Co.  v.  Hai't, 
Harr.  (Mich.)  157,  and  in  the  two  cases  of  Sheldon  v.  School  Dist..  2."> 
Conn.  224,  and  Dodd  v.  Hartford,  25  Conn.  232.  In  these  cases  tlie  single 
assessment  of  a  school  tax  was  involved,  and  the  parties  concerned,  if  per- 
mitted to  unite,  might  have  had  the  whole  controversy  determined  in  one 
suit.  In  this  case,  the  controversy  is  either  separate,  as  the  tax  is  several 
against  each  individual;  or  it  is  general,  as  it  affects  all  the  persons  taxed 
under  the  law";  citing  also  Jones  v.  Garcia,  1  Turn.  &  R.  297,  and  Yeaton 
V.  Lenox,  8  Pet.  123,  and  Adam's  Equity,  198-202.^  I  have  thus  quoted 
at  some  length  from  Judge  Cooley's  opinion,  because  it  is  one  of  the  cleai-- 

§  266,  (1»)    It   has    been    observed  decided  weight  of  authority."     "U'ill- 

that  "Judge  Cooley  in  his  work  on  iams  v.  County  Court,  26  W.  Va.  488, 

Taxation  in  the  edition  of  1879,  in  503,  53  Am.  Rep.   94,  by  Green,  J., 

effect,     admits    that    his    views    as  criticising  Youngblood  v.  Sexton, 
above  expressed  are  opposed  to  the 


491  TO   PKEVENT    A    MULTIPLICITY    OF    SUITS.  §  267 

settled  with  unanimity.  The  only  apparent  exception  con- 
sists in  the  fact  that  formerly  the  courts  of  equity  required 

est  statements  of  the  theory  which  it  supports  to  be  found  in  the  reports. 
It  should  be  observed  that  he  nowhere  adopts  the  test  laid  down  by  some 
judges,  that  each  of  the  numerous  persons  must  himself  he  exposed  to 
many  actions,  in  order  that  a  court  of  equity  may  interfere.  With  respeet 
to  the  reasoning  of  the  opinion,  it  would,  if  correct,  overturn  at  one  blow 
many  well-settled  cases  not  relating  to  taxation,  in  which  the  jurisdiction 
has  been  asserted  both  by  English  and  American  courts.  For  example, 
it  has  been  held  that  one  copyholder  cannot  maintain  a  suit  in  equity 
against  his  lord  of  the  manor,  to  enjoin  or  to  set  aside  an  excessive  fine, 
because  the  question  is  legal,  and  the  defense  would  be  perfectly  available 
to  him  in  an  action  at  law  brought  to  recover  the  fine.  But  numerous 
copyholders  or  all  copyholders  of  the  manor  may  unite  in  a  bill  in  equity 
to  set  aside  excessive  fines  imposed  on  each,  for  the  purpose  of  avoiding 
a  multiplicity  of  suits.  I  cannot  perceive  any  material  distinction,  or  why 
every  position  of  Judge  Cooley's  opinion  would  not  apply  to  and  contra- 
dict this  case.  Many  more  examples  might  be  given  from  cases  quoted 
in  preceding  paragraphs.  The  objection  that  the  primary  remedy  of  each 
tax-payer  is  legal  is  certainly  too  broad;  for  it  would  deny  the  jurisdic- 
tion in  the  vast  majority  of  cases  where  it  is  confessedly  proper  and  uni- 
versally admitted.  The  chief  object  of  the  jurisdiction,  the  fundamental 
ground  and  reason  for  its  existence,  is,  that  it  furnishes  a  complete  and 
final  remedy  by  one  equitable  decree  to  parties  whose  primary  rights, 
cause  of  action,  and  remedies  are  wholly  legal,  either  to  a  single  party 
who  must  otherwise  maintain  or  be  subjected  to  numerous  actions  at  law, 
or  to  a  body  of  persons,  where  each  of  them  must  otherwise  maintain  or 
be  subjected  to  a  similar  action  at  law.  Sheldon  v.  School  District,  25 
Conn.  224,  228,  was  a  suit  by  thirty-nine  tax-payers  to  enjoin  the  enforce- 
ment against  them  of  an  illegal  school  tax.  Held,  that  each  plaintiff  had 
an  adequate  remedy  at  law,  and  the  case  did  not  come  within  the  doctrine 
as  to  the  prevention  of  a  multiplicity  of  suits.  The  court  said:  "The 
mere  saving  the  expense  of  separate  suits  is  no  ground  for  the  plaintiffs 
uniting  in  a  bill  in  equity  to  obtain  an  injunction  against  the  doing  of  an 
act  which  would  give  each  of  them  a  right  of  action  at  law."  The  Con- 
necticut court  seems  to  have  subsequently  abandoned  this  position,  for  it 
has  since,  in  several  instances,  sustained  such  actions  on  behalf  of  tax- 
payers. See  cases  cited  ante,  under  §  2G0.  In  Harkness  v.  Board  of  Pub- 
lic Works,  1  McAr.  121,  131-133,  it  was  held  that  equity  will  set  aside 
an  illegal  tax  assessed  on  the  property  of  a  tax-payer,  when  necessary, — 
1.  To  remove  a  cloud  from  his  title;  or  2.  To  avoid  irreparable  mischief; 
or  3.  To  prevent  a  multiplicity  of  suits.  But  that  when  individual  tax- 
payers have  been  assessed  under  an  illegal  tax  on  property  owned  by  them 


§  267  EQUITY    JURISPRUDENCE.  492 

the  complainant  to  establish  his  disputed  legal  estate,  in- 
terest, or  primary  right  by  repeated  recoveries  at  law, 
whereas  one  successful  trial  at  law  is  now  generally  re- 
garded as  sufficient.     It  is  also  possible  that  there  might 

separately,  and  they  unite  in  an  action,  this  is  not  a  case  coming  within 
the  doctrine  as  to  the  prevention  of  a  multiplicity  of  suits,  and  equity  has 
no  jurisdiction.  The  opinion  gives  different  reasons,  and  does  not  show 
very  clearly  on  what  ground  the  court  places  its  conclusion.  While  it 
seems  to  use  arguments  similar  to  those  emploj^ed  by  Judge  Cooley,  supra, 
the  adequacy  of  the  legal  remedy,  the  absence  of  any  joint  interest,  etc., 
it  also  seems  to  rely  chiefly  on  the  theory  that  each  tax-payer  is  only  in- 
jured in  common  with  all  others,  and  that  he,  therefore,  has  no  cause  of 
action  or  remedial  right  which  any  court  of  justice  can  recognize  and 
protect.     See  supra. 

The  New  York  cases,  Kilbourne  v.  St.  John,  59  N.  Y.  21,  27,  17  Am.  Rep. 
291,  Ayres  v.  Lawrence,  63  Barb.  458,  Tift  v.  Buffalo,  1  Thomp.  &  C.  150, 
and  Comins  v.  Supervisors,  3  Thomp.  &  C.  296,  were  suits  brought  to  set 
aside  or  to  restrain  town  or  city  bonding  proceedings,  unauthorized  by  law, 
by  which  a  municipal  debt  would  be  created,  and  the  burden  of  individual 
taxation  would  be  increased.  The  courts  held  that  no  such  suit  could  be 
maintained,  either  by  tax-payers  uniting,  or  by  one  or  some  suing  on 
behalf  of  others,  or  by  a  single  tax-payer  suing  by  himself  alone.  But  the 
reasons  for  this  conclusion  have  no  real  connection  with  nor  bearing  upon 
the  doctrine  concerning  the  prevention  of  a  multiplicity  of  suits.  The 
ground  upon  which  the  judgment  of  the  court  was  rested  is  the  same  that 
had  been  before  announced  in  Doolittle  v.  Supervisors,  18  N.  Y.  155,  and 
Roosevelt  v.  Draper,  23  N.  Y.  318,  viz.,  that  the  individual  tax-payer, 
under  these  circumstances,  has  no  cause  of  action,  legal  or  equitable, — 
has  no  remedial  right  acknowledged  by  a  court  of  justice.  If  he  has  no 
right  or  remedy  individually,  he  does  not  obtain  any  by  joining  himself 
with  other  tax-payers  in  the  same  situation,  as  co-plaintiffs.  This  theory 
does  not  and  cannot  affect  the  doctrine  as  to  multiplicity  of  suits.  The 
jurisdiction  to  prevent  a  multiplicity  of  suits  never  confers  upon  a  party 
a  remedial  right  where  none  of  any  kind  existed  before ;  its  exercise  neces- 
sarily and  always  assumes  that  the  parties  had  some  prior  existing  cause 
of  action  or  remedial  right,  either  equitable  or  more  commonly  legal.  In 
Barnes  v.  Beloit,  19  Wis.  93,  and  Newcomb  v.  Horton,  18  Wis.  566,  568, 
it  was  held  that  a  number  of  separate  lot-owners  or  tax-payers  cannot 
unite,  and  one  cannot  sue  on  behalf  of  himself  and  others,  to  restrain  the 
enforcement  of  an  invalid  tax  or  assessment,  since  there  is  no  sufficient 
common  interest  among  them;  but  one  lot-owner  or  tax-payer  is  permitted 
in  Wisconsin  to  bring  such  an  action  for  himself  alone.     In  the  case  of 


493  TO   PEEVENT   A    MULTIPLICITY    OF    SUITS.  §  267 

still  be  some  difference  among  individual  equity  judges  in 
regard  to  the  extent  to  which  they  would  compel  a  com- 
plainant to  establish  his  legal  title,  and  to  prosecute  or 
suffer  repeated  actions  at  law,  before  they  would  interfere 

Cutting  V.  Gilbert,  5  Blatehf,  259,  261-263,  six  firms  of  bankers  united  in 
the  bill  on  behalf  of  themselves  and  others,  etc.,  to  restrain  United  States 
revenue  officers  from  assessing  and  collecting  a  certain  United  States  tax. 
Nelson,  J.,  was  of  the  opinion  that  the  plaintiffs  Avere  not  liable  for  the 
tax,  but  held  that  the  bill  could  not  be  sustained,  since  the  remedy  by  ac- 
tion at  law  was  adequate.  He  stated  his  view  of  the  doctrine  in  the  fol- 
lowing clear  and  unmistakable  language:  "The  interest  that  will  allow 
parties  to  join  in  a  bill,  or  that  will  allow  the  court  to  dispense  with  the 
presence  of  all  the  parties,  when  numerous,  except  a  determinate  number, 
is  not  only  an  interest  in  the  question,  but  one  in  common  in  the  subject- 
matter  of  the  suit;  such  as  the  case  of  disputes  between  the  lord  of  a 
manor  and  his  tenants,  or  between  the  tenants  of  one  manor  and  those  of 
another;  or  where  several  tenants  of  a  manor  claim  the  profits  of  a  fair; 
or  in  a  suit  to  settle  a  general  fine  to  be  paid  by  all  the  copyhold  tenants 
of  a  manor,  or  in  order  to  prevent  a  multiplicity  of  suits.  In  all  these 
and  the  like  instances  given  in  the  books,  there  is  a  community  of  interest 
growing  out  of  the  nature  and  condition  of  the  right  in  dispute:  for  al- 
though there  may  not  be  any  privity  between  the  numerous  parties,  there 
is  a  common  title  out  of  which  the  question  arises,  and  which  lies  at  the 
foundation  of  the  proceedings.  ...  In  the  case  before  me  the  only  matter 
in  common  among  the  plaintiffs,  or  between  them  and  the  defendant,  is  an 
interest  in  the  question  [of  law]  involved,  which  alone  cannot  lay  a  foun- 
dation for  the  joinder  of  parties."  He  goes  on  to  show  that  an  injunction 
at  the  suit  of  a  single  tax-payer  would  not,  as  a  matter  of  fact,  prevent 
a  multij^licity  of  actions.  There  is  no  room  here  for  misunderstanding. 
Is  the  learned  judge  correct,  upon  the  authorities,  in  the  test  which  he 
lays  down?  Undoubtedly,  in  many  of  the  decided  cases,  there  is  some- 
thing more  than  a  community  of  interest  in  the  question  at  issue,  or  in 
the  remedy  demanded;  there  is  a  community  of  interest  in  the  subject- 
matter,  in  the  right,  or,  to  use  the  expressive  language  of  Mr.  Justice  Nel- 
son, "a  common  title  out  of  which  the  question  arises."  As,  for  example, 
where  all  the  tenants  of  a  manor  assert  a  right  of  common  of  some  kiiul 
arising  from  the  customs  of  the  manor;  or  where  the  lord  asserts  some 
claim  of  rent  against  all  the  tenants  arising  in  the  same  manner;  or  where 
all  the  parishioners  assert  a  modus  against  the  parson;  and  other  like  in- 
stances. But  there  certainly  are  many  cases,  relating  to  various  kiiuls  of 
subject-matter,  in  which  there  is  no  common  title,  no  community  of  in- 
terest in  the   subject-matter   or  in    the   right,  but   only  a  community  of 


§  267  EQUITY    JURISPRUDENCE.  494 

on  his  behalf;  but  this  difference,  if  it  exists,  only  affects 
the  application  of  a  well-settled  rule,  and  not  the  rule  itself. 
In  cases  belonging  to  the  third  and  fourth  classes,  when  a 
body  of  persons  assert  some  claim  against  a  single  distinct 
party,  or  conversely  a  single  distinct  party  asserts  some 
claim  against  a  body  of  persons,  the  fundamental  question, 
upon  which  the  exercise  of  the  jurisdiction  confessedly 
rests,  and  over  which  there  has  been  a  direct  antagonism 
of  judicial  opinion,  relates  to  the  nature,  extent,  and  object 

interest  in  the  question  at  issue  or  in  the  remedy  demanded.  In  most 
of  them  this  community  among  the  numerous  body  of  interest  in  the  ques- 
tion and  in  the  remedy  arises  from  the  fact  that  one  wrongful  act  or  one 
legal  injury  was  done  to  all  alike;  but  still  the  legal  right  of  each  is  wholly 
separate  and  distinct.  The  group  of  cases  where  separate  owners  have 
united  to  obtain  relief  against  a  single  nuisance,  or  trespass,  or  evasion 
of  water  privileges,  etc.,  are  examples.  The  many  cases  in  which  sepa- 
rate lot-owners  have  been  relieved  from  an  illegal  assessment  imposing 
a  lien  upon  their  individual  lands  are  also  examples.  But  even  this  bond 
of  union  has  not  always  been  present,  nor  always  been  required.  The 
mere  community  of  interest  in  the  question  at  issue  and  in  the  relief  to 
be  obtained  has  been  held  sufficient,  although  the  wrongful  act  done,  the 
injury  inflicted,  was  separate  and  distinct  to  each  individual  of  the  nu- 
merous body  of  claimants.  The  celebrated  case  growing  out  of  Schuyler's 
fraud  in  making  unlawful  overissues  of  stock  to  different  persons  at  dif- 
ferent times,  as  described  under  a  former  paragraph  (see  ante,  §  261),  is 
a  striking  illustration  of  the  power  of  courts  to  disregard  mere  formal 
restrictions  for  the  purpose  of  doing  substantial  justice.  I  would  remark, 
in  passing,  that  the  court  which  sustained  the  Schuyler  case  as  a  proper 
exercise  of  the  equitable  jurisdiction  to  prevent  a  multiplicity  of  suits 
cannot  with  much  consistency  refuse  to  relieve  a  body  of  tax-payers  or 
separate  lot-owners  from  an  illegal  tax  or  assessment,  on  the  gi'ound  that 
there  is  not  a  sufficient  community  of  interest  among  them.  The  conclu- 
sion from  the  foregoing  examination  seems  to  be  irresistible,  that  the  test 
suggested  by  Mr.  Justice  Nelson  in  the  well-known  case  of  Cutting  v. 
Gilbert,  5  Blatchf.  259,  is  not  supported  by  authority  or  by  principle. 
In  Phelps  V,  City  of  Watertown,  61  Barb.  121,  123,  a  suit  by  a  single 
citizen  and  tax-payer  to  restrain  the  city  officials  from  making  unau- 
thorized and  unlawful  contracts  which  would  create  a  public  debt  and 
result  in  additional  taxes  and  assessments,  was  held  not  to  be  within  the 
equitable  jurisdiction  of  preventing  a  multiplicity  of  suits.  Johnson,  J., 
said  (p.  123) :  "Nor  is  there  any  ground  to  apprehend  that  the  plaintiff 


495 


TO   PREVENT    A    MULTIPLICITY    OF    SUITS. 


267 


of  the  common  interest  which  must  exist  among  the  indi- 
vidual members  of  the  numerous  body,  and  between  them 
and  their  single  adversary,  in  order  that  a  court  of  equity 
may  interfere.  Incidental  to  this  main  element,  the  fur- 
ther question  has  been  raised.  What  party  is  entitled  to 
relief  for  the  pui-jDose  of  preventing  a  multiplicity  of 
suits? — whether  the  plaintiff  who  invokes  the  aid  of  a  court 
upon  that  ground  must  himself  be  the  person  who  would 
otherwise,  and  against  his  own  choice,  be  exposed  to  a  re- 
peated and  vexatious  litigation?*    We  have  also  seen,  in 

will  become  involved  in  a  multiplicity  of  actions  by  the  acts  complained 
of,  unless  he  seeks  them  voluntarily."  So  far  as  this  passage  has  any 
meaning  as  an  argument,  it  implies  that  the  jurisdiction  to  prevent  a 
multiplicity  of  suits  will  never  be  exercised  on  behalf  of  a  plaintiff,  when 
he  himself  would  otherwise  be  obliged  voluntarily — that  is,  of  his  own 
option  or  choice — to  bring  numerous  actions  in  order  to  obtain  justice, — 
a  position  which  is  directly  opposed  to  the  universally  admitted  and 
familiar  rules,  since  the  most  important  branch  of  the  jurisdiction  applies 
to  parties  in  exactly  that  situation. 


§  267,  (a)  Cases  of  the  "Third 
Class"  Denying  the  Jurisdiction. — 
See  Baker  v.  Portland,  5  Saw.  566, 
Fed.  Cas.  No.  777  (no  "privity  of  in- 
terest" among  the  complainants) ; 
Scottish  Union,  etc.,  Ins.  Co.  v.  J.  H. 
Molihnan  Co.,  73  Fed.  66;  Thomas  v. 
Council  Bluffs  Canning  Co.,  92  Fed. 
422,  34  C.  C.  A.  428;  Washington 
Co.  V.  Williams,  111  Fed.  801,  49 
C.  C.  A.  621;  Turner  v.  City  of  Mo- 
bile, 135  Ala.  73,  33  South.  133,  147, 
and  the  tax  cases  cited  in  the  notes 
to  §§  265,  266.  But  several  of  these 
cases  may  be  distinguished,  for  the 
reason  that  the  exercise  of  the  juris- 
diction was  unnecessary  or  would  be 
ineffectual,  under  the  principles  of 
§§  251%,  251%,  ante.  Scottish  Union, 
etc.,  Ins.  Co.  v.  J.  H.  Mohlman  Co., 
supra,  was  a  bill  by  several  insur- 
ance companies  against  the  same  in- 
sured to  enjoin  actual  or  prospective 


suits  at  law  growing  out  of  the  same 
loss,  to  each  of  which  the  complain- 
ants had  the  same  defense.  La- 
combe,  Cir.,  J.,  cited  no  authorities 
in  support  of  his  denial  of  the  juris- 
diction, but  was  of  the  opinion  that 
the  plaintiff  in  the  suits  at  law,  if 
unsuccessful  in  one  or  two  suits, 
would  not  prosecute  the  other.  For 
bills  sustained  under  circumstances 
precisely  similar,  see  ante,  §  261,  note 
(b),  near  beginning  of  the  note. 
For  bills  brought  by  several  insurers 
against  the  same  insured,  where  ju- 
risdiction was  properly  declined  be- 
cause there  was  no  common  defense, 
see  ante,  §  250,  note  (b),  Thomas  v. 
Council  Bluffs  Canning  Co.  was  a  bill 
by  numerous  complainants  for  spe- 
cific performance  of  contracts  for 
the  sale  of  their  shares  of  stock. 
The  relief  sought  was  in  substance 
pecuniary,  and  the   court  intimated 


§267 


EQUITY    JURISPRUDENCE. 


496 


a  certain  class  of  cases  growing  ont  of  some  nnanthorized 
public  official  act,  the  principle  has  been  announced  that, 
under  the  circumstances,  the  injured  persons,  citizens,  or 
inhabitants  of  a  local  district  had  no  cause  of  action  of  any- 
kind,  no  claim  to  any  relief  from  a  court  of  justice.  This 
principle,  which  may  be  correct,  is  avowedly  based  alone 
upon  considerations  of  governmental  policy  and  public 
expediency,   and  has  therefore   no   legitimate   connection 


that  the  complainants  might  avoid  a 
multiplicity  of  legal  actions  equally 
as  well  by  assigning  their  claims  to 
one  of  their  number.  Washington 
County  V.  Williams  was  a  suit  by 
numerous  holders  of  an  issue  of 
county  bonds,  payable  from  the  pro- 
ceeds of  a  special  tax,  to  establish 
the  validity  of  the  bonds  and  re- 
cover the  amount  due  thereon.  Cald- 
well and  Thayer,  Cir.  JJ.  (Sanborn, 
Cir.  J.,  dissenting),  denied  that  the 
jurisdiction  of  equity  existed  in  such 
a  case  on  the  ground  of  avoiding  a 
multiplicity  of  suits;  but  also 
pointed  out  that  a  court  of  equity 
was  powerless  to  grant  complete  re- 
lief in  the  premises,  since  it  could 
not  command  the  levy  of  a  tax,  and 
hence  the  complainants,  even  if  suc- 
cessful in  equity,  would  be  com- 
pelled to  resort  to  their  legal  reme- 
dies by  mandamus  in  order  to 
enforce  the  decree.  The  opinion  of 
McClellan,  C.  J.,  in  Turner  -v.  City 
of  Mobile  contains  a  vigorous  denial 
of  the  jurisdiction  in  case  of  class 
third  where  there  is  no  "privity" 
among  the  plaintiffs.  The  learned 
chief  justice  clearly  points  out,  how- 
ever, as  we  have  seen  above,  ante, 
note  (e)  to  §  251%,  that  the  decision 
in  the  case  is  not  necessarily  at  va- 
riance with  any  principle  contended 
for  by  the  author,  and  in  making 
the  question  of  jurisdiction  depend 
on  the  question  of  "privity,"  ignores 


the  early  decision  of  his  court  in 
Morgan  v.  Morgan,  3  Stew.  (Ala.) 
383,  21  Am.  Dec.  638,  where  any  dis- 
tinction, based  on  "privity,"  in  bills 
of  peace,  is  expressly  repudiated. 

The  majority  opinion  in  Watson  v, 
Huntington,  215  Fed,  472,  131  C.  C. 
A.  520,  a  case  of  "class  third,"  denies 
the  jurisdiction  as  laid  down  by  the 
author  and  follows  the  recent  Ala- 
bama and  Mississippi  cases  men- 
tioned in  the  note  to  §  264.  This, 
in  essence,  was  a  suit  by  thirty-eight 
stockholders  who  had  invested  on 
the  faith  of  the  fraudulent  represen- 
tations of  the  defendant,  an  offi- 
cer of  the  corporation,  to  recover 
from  him  the  amount  of  their  invest- 
ments. The  facts  are  far  from 
clear;  but  inasmuch  as  the  plain- 
tiffs' investments  took  place  through 
a  series  of  years,  it  would  seem 
highly  probable  that  they  were  the 
result,  in  part  at  least,  of  separate 
misrepresentations  and  acts  of  mis- 
conduct on  defendant's  part,  and 
hence  presented  separate  and  dis- 
tinct issues  between  him  and  each 
plaintiff;  if  that  be  the  case,  it  is 
governed  by  the  principle  of  §  251^/4, 
ante.  The  instructive  dissenting 
opinion  of  Eogers,  Cir.  J.,  earnestly 
upholding  the  author's  conclusions, 
is  entitled  to  especial  weight,  owing 
to  his  many  years'  experience  as  pro- 
fessor of  Equity  and  dean  of  the 
Law     School     in     Yale     University. 


497 


TO    PREVENT    A    MULTIPLICITY    OF    SUITS. 


267 


with  the  doctrine  concerning  the  prevention  of  a  multi- 
plicity of  suits.  The  principle  has,  however,  in  some  sub- 
sequent decisions,  been  regarded  and  acted  upon,  very  im- 
properly in  my  opinion,  as  though  it  directly  applied  to, 
interfered  with,  abridged,  or  regulated  the  equitable  juris- 
diction to  prevent  a  multiplicity  of  suits.  The  error  in- 
volved in  the  mingling  of  two  entirely  distinct  matters  has, 
I  think,  been  shown  with  sufficient  clearness  in  a  previous 
note. 


Judge  Eogers  points  out,  at  page 
488,  that  a  dictum  of  Mr.  Justice 
Peckham  in  Equitable  Life  Assur. 
See.  V.  Brown,  213  U.  S.  25,  51,  53 
L.  Ed.  682,  693,  29  Sup.  Ct.  404,  is 
not  to  be  taken  as  a  denial  of  the 
jurisdiction  in  class  third.  The  dic- 
tum was  this:  "It  does  not  rest  with 
complainant  to  urge  as  a  foundation 
for  his  suit  that  the  defendant  may 
thereby  be  saved  a  multiplicity  of 
suits  by  other  parties  when  the  de- 
fendant raises  no  objection  to  such 
possible  suits  and  urges  no  such 
ground  for  jurisdiction  in  equity  of 
the  complainant's  suit."  In  this 
case  the  suit  was  by  a  single  plain- 
tiff, suing  for  himself  alone,  and  not 
as  the  representative  of  a  class.  The 
mere  possibility  of  other  suits  like 
the  plaintiff's  is  not  a  sufficient 
ground  for  jurisdiction,  as  has  been 
shown  in  §  251%. 

Cases  which  deny  the  jurisdiction 
in  "class  third"  appear  to  be  rela- 
tively more  numerous  than  those 
that  deny  the  jurisdiction  in  "class 
fourth."  In  support  of  such  denial 
of  the  jurisdiction  in  the  former 
class  the  courts,  so  far  as  the  editor 
has  noticed,  content  themselves,  in 
the  main,  with  the  dogmatic  asser- 
tion that  "the  jurisdiction  to  prevent 
a  multiplicity  of  suits  cannot  prop- 
erly be  invoked  except  by  the  person 
1—32 


who  may  be  subjected  to  them";  or 
that  the  numerous  plaintiffs  "cannot 
individually  complain  that  others 
are  compelled  to  sue,  for  they  have 
no  share  in  the  expense  or  vexation 
of  each  other's  suits."  A  convincing 
answer  to  this  objection  may  be 
found  in  the  two  considerations 
clearly  set  forth  in  Smith  v.  Bank 
of  New  England,  69  N.  H.  254,  45 
Atl.  1082,  by  Carpenter,  C.  J.:  "For 
the  determination  of  one  issue  the 
public  must  provide  seventy-nine 
sessions  of  the  court  and  seventy- 
nine  juries.  In  short,  a  single  issue, 
upon  which  the  rights  of  all  parties 
interested  in  the  controversy  depend, 
must  be  tried  seventy-nine  times, 
and  the  parties  and  the  public  be 
subjected  to  the  worse  than  useless 
expense  of  seventy-eight  trials.  .  .  . 
A  speedy  and  inexpensive  adjudica- 
tion of  their  common  right  is  quite 
as  important  to  the  numerous  plain- 
tiffs as  to  the  single  defendant,  and 
it  may  be  much  more  so.  Cases  may 
often  happen  where  a  rejection  of 
their  application  for  equitable  inter- 
vention to  prevent  a  multiplicity  of 
suits  would  operate  practically  as  a 
denial  of  justice.  Suppose,  e.  g., 
that  each  of  one  hundred  persons 
held  an  interest  coupon  for  $6,  on 
bonds  issued  by  a  town  or  other  cor- 
poration,  and    that   the   only   contro- 


268 


EQUITY    JURISPRUDENCE. 


498 


§  268.  Conclusions  as  to  the  Third  and  Fourth  Classes.^ 
From  a  careful  comparison  of  the  actual  decisions  em- 
braced in  the  third  and  fourth  classes,  and  which  are  quoted 
under  the  foregoing  paragraphs,  the  following  proposi- 
tions are  submitted  as  established  by  principle  and  by 
authority,  and  as  constituting  settled  rules  concerning  this 
branch  of  the  equitable  jurisdiction.  In  that  particular 
family  of  suits,  whether  brought  on  behalf  of  a  numerous 
body  against  a  single  party,  or  by  a  single  party  against 
a  numerous  body,  which  are  strictly  and  technically  "bills 
of  peace,"  in  order  that  a  court  of  equity  may  grant  the 
relief  and  thus  exercise  its  jurisdiction  on  the  ground  of 
preventing  a  multiplicity  of  suits,  there  does  and  must  exist 
among  the  individuals  composing  the  numerous  body,  or 
between  each  of  them  and  their  single  adversary,  a  com- 


verted  question  was  as  to  the  valid- 
itj  of  the  bonds.  Each  coupon-holder 
would  have  a  clear  and,  in  a  legal 
sense,  an  adequate  remedy  at  law. 
But  if  he  recovered  in  an  action  at 
law,  he  would  realize  nothing,  as  the 
necessary  expenses  of  the  suit  would 
exceed  the  amount  recovered.  If,  on 
the  other  hand,  the  question  were  de- 
termined in  one  suit,  each  might 
realize  substantially  the  amount  of 
his  demand.  To  hold  that  equity  will 
intervene  in  behalf  of  the  corpora- 
tion, but  not  in  behalf  of  the  coupon- 
holders,  to  compel  the  issue  to  be 
tried  in  one  suit,  would  bring  de- 
served reproach  upon  the  administra- 
tion of  justice." 

Indeed,  the  conjecture  may  be 
hazarded  that  the  denial  of  the  juris- 
diction may  frequently  effect  a 
greater  practical  injustice  in  cases 
of  "class  third"  than  in  most  cases  of 
class  fourth.  In  a  typical  case  of 
class  fourth,  where  the  single  party 
is  assailed  by  numerous  suits  involv- 
ing the  same  issues,  a  determination 
of  one  or  a  few  of  these  in  his  favor 


will  generally,  perhaps,  result  in  the 
abandonment  of  the  others,  even 
without  the  interposition  of  equity; 
while  in  very  many  cases  of  class 
third,  the  burden  of  a  single  great 
wrong  is  made  to  fall  upon  a  large 
number  of  individuals,  few  of  whom 
can,  unaided,  afford  the  expense  of 
litigation,  and  thus  practical  immu- 
nity is  secured  for  the  wrong-doer. 
See  the  forcible  observations  of 
Walker,  J,,  in  Greedup  v.  Franklin 
County,  30  Ark.  101,  quoted  ante, 
note  (d)  to  §  260. 

§268,  (a)  This  section  is  cited  in 
Washington  County  v.  Williams,  111 
Fed.  801,  815,  49  C.  C.  A.  621,  dis- 
senting opinion  of  Sanborn,  Cir.  J.; 
in  Barton  Nat.  Bank  v.  Atkins,  72 
Vt.  33,  47  Atl.  176;  Osborne  v.  Wis- 
consin Cent.  E.  Co.,  43  Fed.  824,  by 
Harlan,  J.,  cases  illustrating  the 
"third  class";  in  City  of  Albert  Lea 
V.  Nielsen,  83  Minn.  246,  86  N.  W. 
83,  a  case  of  the  "fourth  class."  Sec- 
tion 268  et  seq.  are  cited  in  Kansas 
City  Southern  Ey.  Co.  v.  Quigley,  181 
Fed.  190. 


499  TO    PREVENT    A    MULTIPLICITY    OF    SUITS.  §  268 

mon  right,  a  community  of  interest  in  the  subject-matter 
of  the  controversy,  or  a  common  title  from  which  all  their 
separate  claims  and  all  the  questions  at  issue  arise;  it  is 
not  enough  that  the  claims  of  each  individual  being  sep- 
arate and  distinct,  there  is  a  community  of  interest  merely 
in  the  question  of  law  or  of  fact  involved,  or  in  the  land  and 
form  of  remedy  demanded  and  obtained  by  or  against  each 
individual.^  The  instances  of  controversies  between  the 
lord  of  a  manor  and  his  tenants  concerning  some  general 
right  claimed  by  or  against  them  all  arising  from  the  cus- 
tom of  the  manor,  or  between  a  parson  and  his  parishioners 
concerning  tithes  or  a  modus  affecting  all,  and  the  like,  are 
examples.  It  must  be  admitted,  as  a  clear  historical  fact, 
that  at  an  early  period  the  court  of  chancery  confined  this 
branch  of  its  jurisdiction  to  these  technical  ''bills  of  peace." 
The  above  rule,  as  laid  down  in  them,  was  for  a  consider- 
able time  the  limit  beyond  which  the  court  would  not  exer- 
cise its  jurisdiction  in  cases  belonging  to  the  third  and 
fourth  classes.  For  this  reason  many  passages  and  dicta 
found  in  the  judicial  opinions  of  that  day  must  be  regarded 
as  merely  expressing  the  restrictive  theory  which  then  pre- 
vailed in  the  court  of  chancery,  and  as  necessarily  modified 
by  the  great  enlargement  and  extension  of  the  jurisdiction 
which  has  since  taken  place;  and  at  all  events,  these  dicta 
and  incidental  utterances  should,  on  any  correct  principle 
of  interpretation,  be  treated  as  confined,  and  as  intended  to 
be  confined,  to  the  technical  "bills  of  peace"  in  which  they 
occurred,  or  concerning  which  they  were  spoken.  Notwith- 
standing this  general  theory  of  the  jurisdiction  which  pre- 
vailed at  an  early  period,  it  is  certain  that  even  then  the 
court  sometimes  transcended  the  arbitrary  limit,  and  exer- 
cised the  jurisdiction,  where  there  was  no  pretense  of  any 

§  268,  (b)  Quoted,  Carlton  v.  New-  Lawson,  43  Ind.  App.  226,  87  N.  E. 

man,  77  Me.  408,   1  Atl.  194;   Zahn-  47;    Illinois   Steel   Co.   v.   Schroeder, 

hizer   v.    Hefner,    47    W.   Va.   48,    35  133  Wis.  561,  126  Am.  St.  Rep.  977, 

S.  E.  4;  also,  in  Town  of  Fairfield  v.  14  I..  E.  A.   (N.  S.)    239,  113  N.  W. 

Southport  Nat.  Bank.  77  Conn.  423,  51. 
59   Atl.    513;    Vandalia    Coal   Co.   v. 


§269 


EQUITY   JURISPRUDENCE. 


500 


community  of  right,  or  title,  or  interest  in  the  subject- 
matter. 

§  269.a  This  early  theory  has,  however,  long  been  aban- 
doned. The  jurisdiction,  based  upon  the  prevention  of  a 
multiplicity  of  suits,  has  long  been  extended  to  other  cases 
of  the  third  and  fourth  classes,  which  are  not  technically 
''bills  of  peace,"  but  "are  analogous  to"  or  ''within  the 
principle  of"  such  bills.  Under  the  greatest  diversity  of 
circumstances,  and  the  greatest  variety  of  claims  arising 
from  unauthorized  public  acts,  private  tortious  acts,  inva- 
sion of  property  rights,  violation  of  contract  obligations, 
and  notwithstanding  the  positive  denials  by  some  American 
courts,  the  weight  of  authority  is  simply  overwhelming  that 
the  jurisdiction  may  and  should  be  exercised,  either  on  be- 
half of  a  numerous  body  of  separate  claimants  against  a 


§  269,  (a)  This  section  is  cited  with 
approval  in  San  Lung  v.  Jackson,  85 
Fed.  502;  Liverpool  &  L.  &  G.  Ins. 
Co.  V.  Clunie,  88  Fed.  160,  167;  Vir- 
ginia-Carolina Chemical  Co.  v.  Home 
Ins.  Co.,  113  Fed.  1,  5;  Washington 
County  V.  Williams,  111  Fed.  801, 
815,  49  C.  C.  A.  621;  dissenting  opin- 
ion of  Sanborn,  Cir.  J.;  Osborne  v. 
Wisconsin  Cent.  K.  Co..  43  Fed.  824, 
by  Harlan,  J,;  Dumars  v.  City  of 
Denver  (Colo.  App.),  65  Pae.  580; 
Macon,  etc.,  E.  Co.  v.  Gibson,  85  Ga. 
],  21  Am.  St.  Rep.  134,  11  S.  E.  442; 
Indiana,  I.  &  I.  R.  Co.  v.  Swannell, 
157  111.  616,  30  L.  R.  A.  290,  297,  41 
N.  E.  989;  Barton  Nat.  Bank  v.  At- 
kins, 72  Vt.  33,  47  Atl.  176;  Carey 
V.  Coffee-Stemming  Mach.  Co.  (Va.), 
20  S.  E'.  778;  Bosher  v.  Richmond, 
etc..  Land  Co.,  89  Va.  455,  37  Am. 
St.  Rep.  879,  16  S.  E.  360;  and  in 
Brizzolara  v.  City  of  Ft.  Smith,  87 
Ark.  85,  112  S.  W.  181;  and  Webb  v. 
Cope  (Mo.),  192  S.  W.  934.  All 
these  are  cases  illustrating  the 
author's   "third   class." 


This  section  is  cited  with  approval 
in  De  Forest  v.  Thompson,  40  Fed. 
375;  United  States  v.  Southern  Pac. 
R.  Co.,  117  Fed.  544,  554;  Wyman  v. 
Bowman  (C.  C.  A.),  127  Fed.  257, 
264;  Farmington  Corp.  v.  Bank,  85 
Me.  46,  52,  26  Atl.  965;  Kellogg  v. 
Chenango  Valley  Sav.  Bank,  42  N.  Y. 
Supp.  379,  11  App.  Div.  458;  and  in 
Supreme  Lodge  of  Fraternal  Union 
of  America  v.  Ray  (Tex.  Civ.  App.), 
166  S.  W.  46;  cases  of  the  fourth 
class. 

This  section  is  cited,  generally,  in 
Southern  Steel  Co.  v.  Hopkins,  174 
Ala.  465,  Ann.  Cas.  1914B,  692,  40 
L.  R.  A.  (N.  S.)  464,  57  South.  11; 
Vandalia  Coal  Co.  v.  Lawson,  43  Ind. 
App.  226,  87  N.  E.  47;  Healy  v. 
Smith,  14  Wyo.  263,  116  Am.  St.  Rep. 
1004,  83  Pac.  583;  sections  269-274 
are  cited  in  Southern  Steel  Co.  v. 
Hopkins,  157  Ala.  175,  131  Am.  St. 
Rep.  20,  16  Ann.  Cas.  690,  20 
L.  R.  A.  (N.  S.)  848,  47  South.  274. 


501 


TO    PREVENT    A    MULTIPLICITY    OF    SUITS. 


269 


single  party,  or  on  behalf  of  a  single  party  against  such  a 
numerous  body,  although  there  is  no  '* common  title,"  nor 
^'community  of  right"  or  of  ''interest  in  the  subject- 
matter,"  among  these  individuals,  but  where  there  is  and 
because  there  is  merely  a  community  of  interest  among 
them  in  the  questions  of  law  and  fact  involved  in  the 
general  controversy,  or  in  the  kind  and  form  of  relief  de- 
manded and  obtained  by  or  against  each  individual  member 
of  the  numerous  body>  In  a  majority  of  the  decided  cases, 
this  community  of  interest  in  the  questions  at  issue  and  in 
the  kind  of  relief  sought  has  originated  from  the  fact  that 
the  separate  claims  of  all  the  individuals  composing  the 
body  arose  by  means  of  the  same  unauthorized,  unlawful, 
or  illegal  act  or  proceeding.  Even  this  external  feature 
of  unity,  however,  has  not  always  existed,  and  is  not  deemed 
essential.     Courts  of  the  highest  standing  and  ability  have 


§  269,  (b)  Quoted  with  approval, 
Carlton  v.  Newman,  77  Me.  408,  1 
Atl.   194;   Keese  v.   City  of   Denver, 

10  Colo.  113,  15  Pac.  825;  Smith  v. 
Bank  of  New  England,  69  N.  H. 
254,  45  Atl.  1082;  and  in  the  re- 
cent cases:  Creer  v.  Bancroft  Land 
&  Irr.  Co.,  13  Idaho,  40-7,  90  Pac. 
228;  Breimeyer  v.  Star  Bottling  Co., 
136  Mo.  App.  84,  117  S.  W.  119; 
Kvello  v.  City  of  Lisbon  (N.  D.), 
164  N.  W.  305;  Guffanti  v.  National 
Surety  Co.,  196  N.  Y.  452,  134  Am. 
St.  Kep.  848,  90  N.  E.  174;  Cloyes  v. 
Middlebury   Electric  Co.,  80  Vt.   109, 

11  L.  R.  A.  (N.  S.)  693,  66  Atl.  1039; 
cases  of  the  "third  class";  Corey  v. 
Sherman,  96  Iowa,  114,  32  L.  R.  A. 
490,  509,  64  N.  W.  828,  case  of  a 
single  plaintiff  suing  in  behalf  of  a 
rumerous  body ;  Louisville,  N.  A.  & 
C.  R.  Co.  V.  Ohio  V.  L  &  C.  Co.,  57 
Fed.  42,  45;  Smith  v.  Dobbins,  87  Ga. 
303,  13  S.  E.  496;  Siever  v.  Union 
Pac.  R.  Co.  (Neb.),  93  N.  W.  943; 
and  the  recent  cases:  Goldfield  Con- 
solidated Mines  Co.  v.  Richardson,  194 


Fed.  198;  Town  of  Fairfield  v.  South- 
port  Nat.  Bank,  77  Conn.  423,  59 
Atl.  513;  cases  of  the  "fourth  class"; 
Hale  V.  Allinson,  102  Fed.  790,  791, 
792,  distinguishing  the  "fourth  class." 
The  text  is  also  quoted  in  Watson  v. 
Huntington,  215  Fed.  472,  131  C.  C. 
A.  520,  dissenting  opinion  of  Rogers, 
C.  J.;  and  in  Rogers  v.  Boston  Club, 
205  Mass.  261,  28  L.  R,  A.  (N.  S.) 
743,  9]  N.  E.  321,  where  it  is  said  to 
be  settled  by  the  great  preponder- 
ance of  authority.  "We  are  not  dis- 
posed to  deny  that  jurisdiction  on  the 
ground  of  preventing  a  multiplicity 
of  suits  may~  be  exercised  in  many 
cases  on  behalf  of  a  single  complain- 
ant against  a  number  of  defendants, 
although  there  is  no  common  title  or 
community  of  rights  or  interest  in  the 
subject-matter  among  such  defend- 
ants, but  where  there  is  a  community 
of  interest  among  them  in  the  ques- 
tions of  law  and  fact  involved  in  the 
general  controversy."  Hale  v.  Allin- 
son, 188  U.  S.  56,  23  Sup.  Ct.  244, 
252. 


§  269  EQUITY   JURISPRUDENCE.  502 

repeatedly  interfered  and  exercised  this  jurisdiction,  where 
the  individual  claims  were  not  only  legally  separate,  but 
were  separate  in  time,  and  each  arose  from  an  entirely 
separate  and  distinct  transaction,  simply  because  there 
was  a  community  of  interest  among  all  the  claimants  in 
the  question  at  issue  and  in  the  remedy.^'  The  same  over- 
whelming weight  of  authority  effectually  disposes  of  the 
rule  laid  down  by  some  judges  as  a  test,  that  equity  will 
never  exercise  its  jurisdiction  to  prevent  a  multiplicity  of 
suits,  unless  the  plaintiff,  or  each  of  the  plaintiffs,  is  him- 
self the  person  who  would  necessarily,  and  contrary  to  his 
own  will,  be  exposed  to  numerous  actions  or  vexatious  liti- 
gation. This  position  is  opposed  to  the  whole  course  of 
decision  in  suits  of  the  third  and  fourth  classes  from  the 
earliest  period  down  to  the  present  time.^  While  the  fore- 
going conclusions  are  supported  by  the  great  weight  of 
judicial  authority,  they  are,  in  my  opinion,  no  less  clearly 
sustained  by  principle.  The  objection  which  has  been 
urged  against  the  propriety  or  even  possibility  of  exercis- 
ing the  jurisdiction,  either  on  behalf  of  or  against  a  numer- 
ous body  of  separate  claimants,  where  there  is  no  '^  common 
title,"  or  community  ''of  right"  or  *'of  interest  in  the 
subject-matter,"  among  them,  is,  that  a  single  decree  of 
the  court  cannot  settle  the  rights  of  all;  the  legal  position 
and  claim  of  each  being  entirely  distinct  from  that  of  all 

§269,   (c)  {Quoted  with  approval  in  ion   of   Eogers,   Car.   J.;    Guffanti   v. 

Lockwood  County  v.  Lawrence,  77  Me.  National  Surety  Co.,  196  N.  Y.   452, 

297,  309,  52  Am.  Rep.  763,  a  case  of  134  Am.  St.  Rep.  848,  90  N.  E.  174; 

the  "third  class";   Corey  v.  Sherman,  Cloyes  v.  Middlebury  Electric  Co.,  80 

96  Iowa,  114,  32  L.  R.  A.  490,  509,  64  Vt.  109,  11  L.  R.  A.   (N.  S.)   693,  66 

N.  W.  828,  case  of  a  single  plaintiff  Atl.  1039. 

suing  in  behalf  of  a  numerous  body;  §269,  (d)  Quoted  with  approval  in 

Louisville,   N.   A.   &  G.   R.   R.   Co.  v,  Carlton  v.  Newman,  77  Me.  408,  414,  1 

Ohio  Val.  L  &  C.  Co.,  57  Fed.  42,  45,  Atl.  194,  a  case  of  the  "third  class"; 

a    case    of    the    "fourth    class."     The  and    in    the    recent    cases:    Goldfield 

text  is  also  quoted  in  the   following  Consolidated  Mines  Co.  v,  Richardson, 

recent    cases:     Goldfield    Consolidated  394  Fed.  198;  Watson  v.  Huntington, 

Mines    €o..   v.    Richardson,    194    Fed.  215  Fed.  472,   131  C.  C.  A.  520,  dis- 

198;  Watson  v.  Huntington,  215  Fed.  senting  opinion  of  Rogers,  Cir.  J. 
472,  131  C.  C.  A.  520,  dissenting  opin- 


503  TO    PREVENT   A    MULTIPLICITY    OF    SUITS.  §  269 

the  others,  a  decision  as  to  one  or  some  could  not  in  any 
manner  bind  and  dispose  of  the  rights  and  demands  of  the 
other  persons,  and  thus  the  proceeding  must  necessarily 
fail  to  accomplish  its  only  purpose, — the  prevention  of  fur- 
ther litigation.  This  objection  has  been  repeated  as  though 
it  were  conclusive ;  but  like  so  much  of  the  so-called  ' '  legal 
reasoning"  traditional  in  the  courts,  it  is  a  mere  empty 
formula  of  words  without  any  real  meaning,  because  it 
has  no  foundation  of  fact, — it  is  simply  untrue;  one  arbi- 
trary  rule  is  contrived  and  then  insisted  upon  as  the  reason 
for  another  equally  arbitrary  rule.^  The  sole  and  suffi- 
cient answer  to  the  objection  is  found  in  the  actual  facts. 
The  jurisdiction  has  been  exercised  in  a  great  variety  of 
cases  where  the  individual  claimants  were  completely  sep- 
arate and  distinct,  and  the  only  community  of  interest 
among  them  was  in  the  question  at  issue  and  perhaps  in 
the  kind  of  relief,  and  the  single  decree  has  without  any 
difficulty  settled  the  entire  controversy  and  determined  the 
separate  rights  and  obligations  of  each  individual  claimant. ^ 
The  same  principle  therefore  embraces  both  the  technical 

§  269,  I  While  this  result  has  been  accomplished  in  the  Schuyler  fraud 
case,  17  N.  Y.  592,  in  the  water  company  case,  L.  R.  2  Ch.  8,  in  the  case 
of  the  complicated  contract,  7  N.  J.  Eq.  440,  and  in  other  like  instances 
where  the  separate  demands  of  the  claimants  had  no  common  origin,  but 
each  arose  from  a  distinct  transaction,  and  in  the  various  tax-payers' 
cases,  it  is  plain  that  the  objection  under  consideration  is  merely  illusory; 
that  it  is  truly  what  I  have  called  it,  an  empty  formula  of  words  without 
any  real  meaning.  Much  of  this  a  priori  reasoning  explaining  why  a  par- 
ticular thing  could  not  be  done,  repeated  by  judge  after  judge,  has  in  like 
manner  been  exploded  simply  by  doing  the  thing  which  had,  through  ver- 
bal logic,  been  shown  to  be  impossible.  This  one  fact  is  the  essence  of 
a  great  deal  of  the  modern  legal  reform. 

§269,  (e)  "It  is  true  that  there  are  which  either  in  terms  deny  the  neces- 

occasional    cases    where    it    seems    to  sity  of  such  a  fact  or  ignore  it  by 

have  been  supposed  that  there  must  be  granting  relief  where  the  fact  did  not 

some    community    of    interest, — some  exist.    And,   indeed,   it  is   difficult   to 

tie  between  the  individuals  who  make  find    any    reason    why    it    should    be 

up  the   great   number;   but'the  great  thought   necessary.     It    has   no   rele- 

weight  of  authority  is  to  the  contrary  vancy  to  the  principle  or  purpnsr,  of 

and    there    is    a    multitude    of    cases  the  doctrine  itself,  which   stau<ls   not 


§  270  EQUITY    JURISPRUDENCE.  504 

''bills  of  peace,"  in  which  there  is  confessedly  a  common 
right  or  title  or  community  of  interest  in  the  subject- 
matter,  and  also  those  analogous  cases  over  which  the  juris- 
diction has  been  extended,  in  which  there  is  no  such  common 
right  or  title  or  community  of  interest  in  the  subject- 
matter,  but  only  a  community  of  interest  in  the  question 
involved  and  in  the  kind  of  relief  obtained.* 

§  270.a  A  few  additional  words  may  be  proper  with  re- 
spect to  the  exercise  of  the  jurisdiction  on  behalf  of  tax- 
payers and  other  members  of  a  local  district  or  community 
affected  by  an  unlawful  common  or  public  burden.  Where- 
ever  the  principle  has  been  finally  settled  that  individual 
citizens  or  members  of  a  municipality  sustaining  an  injury 
from  some  unauthorized  or  illegal  official  act,  in  common 
with  all  the  other  citizens  or  members  of  the  same  dis- 
trict,—  that  is,  only  suffering  the  same  wrong  or  loss  which 
is  inflicted  upon  all  other  like  persons, — have  no  cause  of 
action  whatever,  no  remedial  right  recognized  by  any  court 
of  justice,  there  can,  of  course,  be  no  exercise  on  their  be- 
half of  the  equitable  jurisdiction  to  prevent  a  multiplicity 
of  suits.  And  if  the  principle  is  held  to  embrace  tax- 
payers, they  are  also  without  any  equitable  relief.  But  it 
is  a  grave  error  to  suppose  that  this  doctrine  has  any  spe- 
cial connection  with  the  equitable  jurisdiction  to  prevent 
a  multiplicity  of  suits,  or  in  any  special  manner  restricts 
that  jurisdiction.  Being  based  upon  high  considerations 
of  governmental  policy,  it  avowedly  overrides  and  dis- 
places all  judicial  authority,  every  form  of  judicial  action. 
Wherever,  on  the  other  hand,  the  tax-payers  of  a  district 
subject  to  an  unlawful  burden  are  regarded  as  having  some 
cause  of  action,  as  entitled  to  some  judicial  remedy, — as, 

merely  as   a   makeweight   when   other  is  quoted   with  approval  in   Siever  v. 

equities  are  present,   but'  as  an  inde-  Union    Pac.    R.    R.    Co.     (Neb.),    93 

pendent    and    substantive    ground    of  N.  W.  943. 

jurisdiction."     Bailey    v.    Tillinghast  §270,    (a)    This  section  is  cited  in 

(C.  C.  A.),  99  Fed.  801,  807.  Allen  v.   fntendant,  etc.,   of  La  Fay 

§269,   (f)  This  passage  of  the  text  ette,  89  Ala.  641,  8  South.  30. 


505  TO    PREVENT    A    MULTIPLICITY    OF    SUITS.  §  270 

for  example,  where  the  individual  tax-payer  may  maintain 
an  action  at  law  to  recover  back  the  illegal  tax  which  he 
has  paid,  or  to  recover  damages, — there,  in  my  opinion, 
all  the  reasons  for  exercising  the  jurisdiction  to  prevent 
a  multiplicity  of  suits  in  any  case  of  the  third  or  fourth 
classes  apply  with  great  and  convincing  force  in  support 
of  the  same  jurisdiction  in  behalf  of  such  tax-paj'ers.  Not- 
withstanding the  adverse  decisions,  the  weight  of  judicial 
authority  in  favor  of  this  conclusion,  and  of  exercising  the 
jurisdiction  under  every  form  of  local  assessment,  general 
tax,  municipal  debt,  or  other  public  burden  by  which  taxa- 
tion would  be  increased,  is  very  decided.^  On  principle, 
no  distinction  can  be  discovered  between  the  case  of  such 
tax-payers,  and  the  instances  in  which  the  jurisdiction  has 
been  repeatedly  exercised  and  fully  established  on  behalf 
of  a  common  body  of  separate  claimants.  Each  tax-payer 
has  a  remedy  by  action  at  law;  but  it  is  to  the  last  degree 
inadequate  and  imperfect,  and  often  nominal,  since  he  must 
wait  until  the  wrong  has  been  accomplished  against  him- 
self before  he  can  obtain  redress;  and  at  best,  the  rights 
of  all  can  only  be  secured  even  in  this  incomplete  manner 
by  an  indefinite  number  of  litigations.  By  means  of  the 
equitable  jurisdiction,  the  whole  controversy  and  the  rights 
of  every  individual  tax-payer  can  be  finally  determined  in 
one  judicial  proceeding  by  one  judicial  decree.  This  is  not 
a  plausible  theory;  it  is  a  fact  demonstrated  in  the  constant 
judicial  experience  of  numerous  states. 2 

§  270,  1  This  weight  of  autliority  becomes  even  more  imposing  from 
the  fact  that  in  New  York,  and  in  several  other  states  whose  courts  have 
followed  the  lead  of  New  York  tribunals,  the  denial  of  relief  to  the  tax- 
payers has  been  based,  in  part  at  least,  upon  the  principle  of  public  policy 
mentioned  above  in  the  text,  by  virtue  of  which  individual  tax-payers  were 
held  to  be  without  any  remedial  right.  The  adoption  of  this  principle 
at  once  ended  all  possibility  of  judicial  interference;  and  these  decisions 
have  therefore  no  legitimate  authority  upon  the  question  as  to  the  equitable 
jurisdiction  to  prevent  a  multiplicity  of  suits  being  exercised  on  behalf 
of  tax-payers. 

§  270,  2  Can  it  appear  to  the  thoughtful  observer  otherwise  than  as  a 
farce  or  travesty  upon  the  administration  of  justice,  to  see  a  court  deny 


§  271  EQUITY    JURISPRUDENCE.  506 

§  271.  Cases  in  Which  the  Jurisdiction  is  Exercised — 
First  Class. ^ — Having  thus  examined  the  meaning,  extent, 
and  operation  of  the  doctrine,  I  shall  enumerate,  without 
any  further  description,  the  various  kinds  of  cases  in  which 
the  jurisdiction  to  prevent  a  multiplicity  of  suits  has  been 
exercised,  and  over  which  it  has  been  settled  by  a  prepon- 
derance of  judicial  authority.  Class  first. — The  jurisdic- 
tion is  constantly  exercised,  under  a  proper  condition  of 
facts,  in  the  following  instances  belonging  to  the  first  class : 
Suits  by  a  proprietor  to  restrain  continuous  trespasses  ;i  ^ 

all  relief  to  a  body  of  tax-payers  suing  in  the  form  of  an  equitable  action 
to  restrain  an  illegal  tax,  or  to  set  aside  an  illegal  official  act,  such  as  a 
town  bonding,  for  the  alleged  reasons  that  their  interests  were  separate, 
and  could  not  be  determined  by  one  decree,  and  then  to  see  the  self-same 
judges,  on  behalf  of  the  same  tax-payers  in  the  same  case,  and  upon 
exactly  the  same  facts  set  forth  in  a  petition,  grant  the  very  identical 
relief,  and  set  aside  the  tax  or  official  act,  by  their  adjudication  made 
upon  a  writ  of  certiorari? '^  We  may  still  hope  that  the  time  will  come, 
in  the  progress  of  an  enlightened  legal  reform,  when  the  administration 
of  justice  will  be  based  entirely  upon  considerations  of  substance,  and  not 
of  mere  form.  The  reformed  system  of  procedure  as  it  is  administered 
by  some  courts  has  left  much  room  for  further  improvement  in  the  modes 
of  obtaining  justice. 

§  271,  I  Hanson  v.  Gardiner,  7  Ves.  305,  309,  310 ;  Livingston  v.  Living- 
ston, 6  Johns.  Ch.  497,  500,  10  Am.  Dec.  353;  Hacker  v.  Barton,  84  111. 
313. 

§270,     (b)     Quoted    in    Equitable  lust   Tp.,    118   Mich.   494,   76    N.    W. 

Guarantee  &  T.  Co,  V.  Donahoe  (Del.),  1045;    Warren    Mills   v.   N.   O.    Seed 

45  Atl.  583.  Co.,    65    Miss.    391,    7  Am.    St.   Rep. 

§271,   (a)   This  section  is  cited  in  671,  4  South.  298;  Birmingham  Trac- 

Preteca  v.  Maxwell  Land  Grant   Co.,  tion   Co.   v.   S.   B.   T.   &   T.   Co.,   119 

(C.  C.  A.),  50  Fed.  674.  Ala.    144,    24   South.    731;    Golden   v. 

§271,  (b)   The  text  is  cited  to  this  Health  Dept.,  47  N.  Y.  Supp.  623,  21 

effect     in     Cowan     v.     Skinner,     52  App.  Div.  420;  HaU  v.  Sugo,  61  N.  Y. 

Fla.     486,     11     Ann.     Cas.     452,     42  Supp.  770,  46  App.  Div.  632;  Olivella 

South,   730,     See  ante,  §  252;   Carney  v.  New  York  &  H.  R.  Co.,  64  N.  Y. 

v.   Hadley,   32  Fla.   344,   37  Am.   St.  Supp.  1086,  31  Misc.  Rep.  203;  Gibbs 

Rep.  101,  22  L.  R.  A.  233,  14  South.  v.     McFadden,    39    Iowa,    371;     Ten 

4;    Nichols    v.    Jones,    19    Fed.    855;  Eyck   v.    Sjoburg,    68    Iowa,    625,    27 

Boston  &  M.  R.  R.  Co.  v.  Sullivan,  N.  W,  785.    For  additional  cases,  con- 

177  Mass.  230,  83  Am.  St.  Rep.  275,  suit     Pom.     Eq.     Rem.,     "Injunction 

58    N.    E.    689;    Davis    v.    Franken-  against  Trespass." 


507  TO   PREVENT   A    MULTIPLICITY    OF    SUITS.  §  272 

to  restrain  and  remove  private  nuisances,  especially  when 
they  are  infringements  upon  some  easement,  as  a  water 
right  ;-<^  to  restrain  waste  ;3  and  to  settle  disputed  bound- 
aries.* The  .iurisdiction  has  also  been  admitted,  under 
special  circumstances,  to  settle  the  entire  controversy  be- 
tween two  parties  growing  out  of  some  complicated  con- 
tract involving  numerous  questions  and  many  actions  at 
law.5  d 

§  272.  Second  Class. — In  cases  belonging  to  the  first 
branch  of  this  class,  the  rule  is  familiar  that  the  court  will 
interfere  to  restrain  actions  of  ejectment  to  recover  the 
same  tract  of  land  when  the  plaintiff's  title  has  already 

§271,  2  Parker  v.  Winnipiseogee,  etc.,  Co.,  2  Black,  545,  551;  Cu.  le 
V.  Cooper,  21  N.  J.  Eq.  576,  579 ;  Corning  v.  Troy  Iron  Factoiy,  39  Barb. 
311,  327,  34  Barb.  485,  492;  Webb  v.  Portland  Mfg.  Co.,  3  Sum.  1S9; 
Lyon  V.  McLaughlin,  32  Vt.  423,  425,  42G;  Sheetz's  Appeal,  35  Pa.  St. 
88,  95;  Holsman  v.  Boiling  Spring  Co.,  14  N.  J.  Eq.  335;  Sheldon  v. 
Rockwell,  9  Wis.  166,  179,  76  Am.  Dec.  265;  Eastman  v.  Amoskeag,  etc., 
Co.,  47  N.  H.  71,  79,  80;  and  restraining  an  mterference  with  plaintili's 
exclusive  ferry  franchise :  McRoberts  v.  Washburne,  10  Minn.  23,  30 ; 
Letton  V.  Goodden,  L.  R.  2  Eq.  123,  130.  Also,  such  nuisance  is  restrained 
at  the  suit  of  numerous  separate  proprietors,  where  each  is  injured  by  it 
in  his  own  land:  Cardigan  v.  Brown,  120  Mass.  493,  495;  Ballou  v.  Inhabi- 
tants of  Hopkinton,  4  Gray,  324,  328;  Murray  v.  Hay,  1  Barb.  Ch.  59,  43 
Am.  Dec.  773 ;  Reid  v.  Gifford,  Hopk.  Ch.  416,  419,  420. 

§  271,  3  Hughlett  v.  Harris,  1  Del.  Ch.  349,  352,  12  Am.  Dec.  104. 

§  271,  4  Hill  V.  Proctor,  10  W.  Va.  59,  77. 

§  271,  5  Biddle  v.  Ramsey,  52  Mo.  153, 159 ;  Black  v.  Shreeve,  7  N.  J.  Eq. 
440,  456,  457;  for  limitations  upon  the  jurisdiction  in  such  cases,  see  Rich- 
mond V.  Dubuque,  etc.,  R.  R.,  33  Iowa,  422,  487,  488,  per  Beck,  C.  J. 

§271,    (c)    See   ante,  §252;    Camp-  Steger  &  Sons  Piano  Mfg.  Co.  v.  :\.rac 

bell  V.  Seaman,  63  N.  Y.  5G8,  20  Am.  Master,     51     Tex.     Civ.     App.     527 

Eep.    567,    where    the    nuisance    con-  113   S.   W.   337.     Ante,    §§    252,    263 

sisted  of  a  brick  kiln;  Coatsworth  v.  and  notes.     See,  also,  Stovall  v.  J[e 

Lehigh  Val.  B.  Co.,  156  N.  Y.  451,  51  Cutcheon,    107   Ky.   577,   92   Am.   St 

N.  E.  301,  affirming  48  N.  Y.  Supp.  Rep.  373,  47  L.  R.  A.  287,  54  S.  W, 

511,  24  App.  Div.  273;  and  Pom.  Eq.  969;  Shinier  v.  Morris  Canal  &  B.  Co 

Rem..  "Injunction  against  Nuisance."  27  N.  J.  Eq.  364;   Peterson  v.  Flem 

§271,    (d)    The   text   is   quoted   in  ing,  63  111.  App.  357. 


§  272  EQUITY   JURISPRUDENCE.  508 

been  sufficiently  established  at  law;ia  and  to  restrain  fur- 
ther or  successive  actions,  not  of  ejectment,  brought  for 
the  same  matter,  when  the  plaintiff's  rights  have  already 
been  fully  established  in  some  prior  judicial  proceeding 
between  the  same  parties.^^  In  cases  constituting  the 
second  branch  of  this  class,  the  court  may  restrain  numer- 
ous simultaneous  actions  against  the  plaintiff  brought  by 
the  same  defendant,  all  involving  the  same  questions,  for 
the  purpose  of  having  the  whole  decided  by  one  trial  and 
decree.  The  court  will  not  interfere,  however,  when,  by 
the  rules  of  legal  procedure,  all  the  actions  can  be  consoli- 
dated by  order  of  the  court  of  law.^  e 

§  272,  1  Earl  of  Bath  v.  Sherwin,  Free.  Ch.  261,  10  Mod.  1,  1  Brown 
Pari.  C.  266,  270,  2  Brown  Pari.  C,  Tomlins's  ed.,  217;  Leighton  v.  Leigh- 
ton,  1  P.  Wms.  671;  Devonsher  v.  Newenham,  2  Schoales  &  L.  208,  209 
Weller  v.  Smeaton,  1  Cox,  102,  1  Brown  Ch.  573;  Earl  of  Darlington  v 
Bowes,  1  Eden,  270,  271;  Alexander  v.  Pendleton,  8  Cranch,  462,  468 
Trustees  of  Huntington  v.  Nicoll,  3  Johns.  566,  589,  590,  591,  595,  601 
602;  Eldridge  v.  Hill,  2  Johns.  Ch.  281;  Woods  v.  Monroe,  17  Mich.  238 
Bond  V.  Little,  10  Ga.  395,  400 ;  Harmer  v.  Gwynne,  5  McLean,  313,  315 
Patterson  v.  McCamant,  28  Mo.  210;  Knowles  v.  Inches,  12  Cal.  212. 

§  272,  2  Paterson,  etc.,  R.  R.  v.  Jersey  City,  9  N.  J.  Eq.  434. 

§  272,  3  Kensington  v.  White,  3  Price,  164,  167;  Third  Ave.  R.  R.  Co.  v. 
Mayor,  etc.,  of  New  York,  54  N.  Y.  159,  162,  163.  But  see,  per  contra, 
West  V.  Mayor,  etc.,  of  New  York,  10  Paige,  539. 

§272,   (a)  Ante,  §§  248,  253;  Hoi-  265,  38  N.  E.  271,-   Galveston,  H.  ft 

land  V.  Challen,   110  U.   S.   15,   19,  3  S.  A.  E'y  Co.  v.  Dowe,  70  Tex.  5,  7 

Sup.  Ct.  495;   Sharon  v.  Tucker,  144  S.  W.  368;  Featherstone  v.  Carr,  132 

U.  S.  542,  12  Sup.  Ct.  720;  Dishong  N.    C.    800,    44    S.   E.    592;    City    of 

V.  Pinkbmer,  46  Fed.  12,  16;  Pratt  v.  Hutchinson  v.  Beckham   (C.  C.  A.), 

Kendig,  128  111.  293,  21  N.  E.  495.  318   Fed.    399;    Sylvester   County   v. 

§272,    (b)    Ante,  §  253;    Bank    of  St.  Louis,   130  Mo.   323,  51  Am.  St. 

Kentucky    v.    Stone,    88    Fed.    383;  Eep.    560,    32    S.    W.    649;    Davis    v. 

Union    &    Planters'    Bank    v.    Mem-  Fasig,   128  Ind.  271,   27   N,   E.   726; 

phis,  111  Fed.  561,  49  C.  C.  A.  455;  City  of  Kushville  v.  Rushville  Nat- 

Siever  v.  Union  Pac.  R.  Co.  (Neb.),  ural    Gas    Co.,    132    Ind.    575,    15  L. 

93  N.  W.  943.  E.    A.    321,    28    N.    E.    853;    .Joseph 

§  272,   (c)   Ante,  §  254,  and  notes.  Schlitz  Brewing  Co.  v.   City   of   Su- 

See    Cuthbert    v.   Chauvet,    60    Hun,  perior,  117  Wis.  297,  93  N.  W.  1120; 

577,    14    N.    T.    Supp.    385,    20    Civ.  Milwaukee  El.  R.  &  L.  Co.  v.  Brad- 

Proc.    Rep.    391;    Norfolk    &    N.    B.  ley,    108    Wis.    467,    84    N.    W.    870. 

Hosiery    Co.   v.    Arnold,    143    N.    Y.  Fer  contra,  see  Poyer  v.  Village  of 


509  TO    PEEVENT    A    MULTIPLICITY    OF    SUITS.  §  273 

§273.  Third  Class.*— The  cases  constituting  this  class 
must  be  separated  into  several  different  groups,  all  depend- 
ing, however,  upon  the  same  principle.  The  jurisdiction  is 
exercised  in  suits  brought  by  numerous  persons  to  estab- 
lish their  separate  claims  against  a  single  party,  where 
these  claims,  although  separate,  all  arise  from  a  common 
title,  and  there  is  a  common  right  or  common  interest  in 
the  subject-matter; I''  in  suits  by  numerous  individual  pro- 
prietors of  separate  tracts  of  land  to  restrain  and  abate  a 
private  nuisance  or  continuous  trespass  which  injuriously 
affects  each  proprietor  ;2  e  in  suits  by  numerous  separate 

§  273,  1  Technically  called  "bills  of  peace" ;  e.  g.,  suits  by  tenants 
against  the  lord  of  the  manor;  by  parishioners  against  the  parson,  etc.; 
Cowper  V.  Clerk,  3  P.  Wms,  155,  157;  Weale  v.  West  Middlesex  Water 
Co.,  1  Jacobs  &  W.  358,  369,  per  Lord  Eldon;  Phillips. v.  Hudson,  L.  R. 
2  Ch.  243,  246;  Powell  v.  Powis,  1  Younge  &  J.  159;  Rudge  v.  Hopkins, 
2  Eq.  Cas.  Abr.  120,  pi.  27;  Conyers  v.  Abergavenny,  1  Atk.  284. 

§  273,  2  Cardigan  v.  Brown,  120  Mass.  493,  495 ;  Ballon  v.  Inhabitants 
of  Hopkinton,  4  Gray,  324,  328;  Murray  v.  Hay,  1  Barb.  Ch.  59,  43 
Am.  Dec.  773;  Reid  v.  Gifford,  Hopk.  Ch.  416,  419,  420.  But  see,  per 
contra,  Marselis  v.  Morris  Canal  Co.,  1  N.  J.  Eq.  31. 

Des  Plaines,  123  ni.  Ill,  5  Am.  St.  §273,    (b)    See    an<e,  §§  247,    256, 

Eep.  494,  13  N.  E.  819;  Chicago,  B.  and  notes. 

&  Q.   R.  E.  Co.  V.  City  of  Ottawa,  §273,    (c)    See    ante,    §    257,    and 

148   111.  397,  36  N.  E.   85;   Yates  v.  notes,     and     the     following     among 

Village  of  Batavia,  79  111.  500;  Cle-  many   other   cases:    Lonsdale   Co.   v. 

land  V.  Campbell,   78  111.  App.   624;  Woonsocket,    21    R.    I.    498,    44   Atl. 

Ewing  V.  City  of  Webster  City,  103  929;    Strobel   v.   Kerr  •  Salt   Co.,    164 

Iowa,  226,  72  N.  W.  511.  N.  Y.  303,  79  Am.  St.  Eep.  643,  51 

§273,  (a)  This  section  is  quoted  in  L.  E.  A.  687,  58  N.  E.  142;  Geurkink 

full  in  Turner  v.  City  of  Mobile,  135  v.   Petaluma,   112   Cal.   306,   44   Pac. 

Ala.    73,    33    South.    133,    142;    and  570;    Yooinkin    v.    Milwaukee,    etc., 

cited   with   approval  in   Washington  Co.,  112  Wis.  15,  87  N.  W.  861;  First 

County    V.    Williams,    111    Fed.    801,  Nat,  Bank  v.  Sarlls,  129  Ind.  201,  28 

815,  49  C.  C.  A.  621,  dissenting  opin-  Am.    St.    Eep.    185,    28    N.    E.    434; 

ion  of  Sanborn,  Cir.  J.;   Osborne  v.  Whipple   v.   Guile,   22   R.   I.   576,   84 

Wisconsin  Cent.  R.  Co.,  43  Fed.  824,  Am.  St.  Eep.  855,  48  Atl.  935,  and 

by   Harlan,  J.;   Allen  v.  Intendant,  eases  cited;  Rowbotham  v.  Jones,  47 

etc.,  of  La  Fayette,  89  Ala.  641,  9  N.  J.  Eq.  337,  20  Atl.  731,  and  cases 

L.  E.  A.  497,  8   South.   30;   Dumars  cited;  Smith  v.  Smith,   148  Mass.  1, 

V.  City  of  Denver   (Colo.  App,),  65  18  N.  E.  595,  2  Ames  Cas.  Eq.  Jur. 

Pac.  580.  64,     See,    also,    these    recent    cases: 


§  273  EQUITY    JURISPRUDENCE.  510 

judgment  creditors  to  reach  the  property  of  and  enforce 
their  judgments  against  the  same  fraudulent  debtor  ;^^ 
in  suits  by  numerous  owners  of  separate  and  distinct  lots 
of  land  to  set  aside  or  restrain  the  collection  of  an  illegal 
assessment  for  local  improvements  laid  by  a  city,  town,  or 
other  municipal  corporation,  and  made  a  lien  on  their  re- 
spective lots  ;^  6  and  in  suits  by  numerous  tax-payers  of  a 
town,  city,  county,  or  other  district  to  restrain  or  set  aside 
an  illegal  general  tax,  whether  personal  or  made  a  lien 
upon  their  respective  property,  or  an  illegal  proceeding  of 
the  local  officials  whereby  a  public  debt  would  be  created 
and  taxation  would  be  increased.^  * 

§  273,  3  Brinkerhoff  v.  Brown,  6  Johns.  Ch.  139,  151,  156. 

§  273,  4  Ireland  v.  City  of  Rochester,  51  Barb.  415,  435 ;  Scofield  v.  City 
of  Lansing,  17  Mich.  437 ;  City  of  Lafayette  v.  Fowler,  34  Ind.  140 ;  Ken- 
nedy V.  City  of  Troy,  14  Hun,  308,  312;  Clark  v.  Village  of  Dunkirk,  12 
Hun,  181,  187;  but  see,  per  contra,  Dodd  v.  Hartford,  25  Conn.  232,  238; 
Howell  V.  City  of  Buffalo,  2  Abb.  App.  412,  416;  Bouton  v.  City  of 
Brooklyn,  15  Barb.*375,  387,  392-394. 

§  273,  5  Attorney-General  v.  Heelis,  2  Sim.  &  S.  67,  76 ;  for  a  collection 
of  American  cases,  see  ante,  note  under  §  260.  For  cases  holding  the  con- 
trary, see  ante,  note  under  §  266. 

American  Smelting  &  Eefining  Co.  v.  App.),  65  Pac.  580;  Michael  v.  City 

Godfrey,  158  Fed.  225,  14  Ann.  Cas.  of  St.  Louia,  112  Mo.  610,  20  S.  W. 

S,  89  C.  C.  A.  139;  Norton  v.  Colusa  666.     See,    also,    the    recent    cases: 

P.  M.  &  S.  Co.,  167  Fed.  202;  Brown  Brizzolara  v.  City  of  Ft.  Smith,  87 

V.  Atlantic  &  B.  R.  Co.,  126  Ga.  248,  Ark.    85,    112    S.    W.    181;    Drainage 

7  Ann.  Cas.  1026,  55  S.  E.  24;  Hough  Com'rs  Dist.  No.   2   v.  Kinney,   233 

V.   Porter,  51   Or.   318,  95  Pac.   732,  111.    67,    84    N.    E.    34;    Coleman    v. 

98  Pac.   1083,   102   Pac.  728;  Teel  v.  Eathbun,  40  Wash.  303,  82  Pac.  540. 

Rio  Bravo  Oil  Co.,  47  Tex.  Civ.  App.  §  273,  (f )  The  text  is  cited  to  this 

153,  104  S.  W.  420;  Cloyes  v.  Middle-  effect  in  Pierce  v.  Hagans,  79   Ohio 

bury    Electric    Co.,    80    Vt.    109,    11  St.    9,    36    L.    R.    A.    (N.    S.)    1,    86 

L.  R.  A.   (N.  S.)   693,  66  Atl.  1039.  N.    E.    519.     See,    also,    Greedun    v. 

§273,  (d)  See  ante,  §  261,  notes  1,  Franklin  County,  30  Ark.  101;  Bode 

and  (b),  Class  Third,   (II);  Enright  v.    New    England   Inv.    Co.,    6    Dak. 

V.   Grant,  5  Utah,  334,  15  Pac.  268;  499,   42   N.   W.   658,   45   N.   W.   197; 

Sheldon  v.  Packet  Co.,  8  Fed.  769.  Knopf  v.   First   Nat.   Bank,   173   111. 

§273,    (e)    See  ante,   §   260,  notes,  o31,  50  N.   E.  660;   City   of  Chicago 

and  §  266,  notes;  Keese  v.  City  of  v.   Collins,   175  111.  445,  67  Am.  St, 

Denver,   10  Colo.   113,  15  Pac.  825;  Rep.  224,  49  L.  R.  A.  408,  51  N.  E. 

Dumars    v.    City    of    Denver    (Colo.  907;   German   Alliance  Assur.  Co.  v. 


511 


TO    PREVENT    A    MULTIPLICITY    OF    SUITS. 


§274 


§274.  Fourth  Class.a— The  jurisdiction  has  been  exer- 
cised in  the  following  cases  belonging  to  this  class,  and  in 
most,  if  not  all,  of  them  it  may  be  regarded  as  fully  settled : 
In  suits  by  a  single  plaintiff  to  establish  a  common  right 
against  a  numerous  body  of  persons,  where  the  opposing 
claims  of  these  individuals  have  some  community  of  inter- 
est, or  arise  from  some  common  title  ;^  ^  in  suits  by  a  single 
plaintiff  to  establish  a  common  right  against  a  numerous 
body,  where  there  is  only  a  community  of  interest  in  the 
questions  at  issue  among  these   opposing  claimants,  but 

§  274,  1  Technical  "bills  of  peace" :  Lord  Tenham  v.  Herbert,  2  Atk. 
483;  How  v.  Tenants  of  Bromsgi'ove,  1  Veni.  22;  Ewelme  Hospital  v. 
Andover,  1  Vern.  266  (profits  of  a  fair) ;  Corp'n  of  Carlisle  v.  Wilson,  13 
Ves.  276,  279  (tolls);  New  River  Co.  v.  Graves,  2  Vern.  431;  Brown  v. 
Vei-muden,  1  Chan.  Cas.  272  (tithes) ;  Rudge  v.  Hopkins,  2  Eq.  Cas.  Abr. 
170,  pi.  27  (tithes) ;  Pawlet  v.  Ingres,  1  Vern.  308  (lord  and  tenants) ; 
Weeks  v.  Staker,  2  Vern.  301  (ditto)  ;  Arthington  v.  Fawkes,  2  Vern.  356 
(ditto) ;  Conyers  v.  Abergavenny,  1  Atk.  284  (ditto) ;  Poor  v.  Clarke,  2 
Atk.  515  (ditto) ;  Duke  of  Norfolk  v.  Myers,  4  Madd.  S3  (lord  of  manor,— 
tolls  of  a  mill) ;  Bouverie  v.  Prentice,  1  Brown  Ch.  200. 


Van  Cleave,  191  111.  410,  61  N.  E.  94; 
Drainage  Com'rs  Dist.  No.  2  v.  Kin- 
ney, 233  111.  67,  84  N.  E.  34;  Gray  v. 
Foster,  46  Ind.  App.  149,  92  N.  E.  7; 
Carlton  v.  Newman,  77  Me.  408,  1 
Atl.  194;  Clee  v.  Sanders,  74  Mich. 
692,  42  N.  W.  154;  Ramsey  v.  Bader, 
67  Mo.  476;  Sherman  v.  Banford,  10 
R.  I.  559;  McTwiggan  v.  Hunter,  18 
R.  I.  776,  30  Atl.  962,  2  Ames  Cas. 
Eq.  Jur.  71;  Quimby  v.  Wood,  19 
R.  I.  571,  35  Atl.  149;  City  of  Hous- 
ton v.  Baker  (Tex.  Civ.  App.),  178 
S.  W.  820;  McClung  v.  Livosay,  7 
W.  Va.  329;  Doonan  v.  Board  of 
Education,  9  W.  Va.  246;  Corrothers 
v.  Board  of  Education,  16  W.  Va. 
527;  Williams  v.  County  Court,  26 
W.  Va.  488,  53  Am.  Rep.  94  (an  ex- 
haustive review  of  the  authorities) ; 
Blue  Jacket  v.  Scherr,  50  W.  Va. 
533,  40  S.  E.  514. 

The      author's      enumeration       of 


"groups"  of  cases  of  class  third 
was  plainly  not  intended  to  be  ex- 
haustive, as  seem.s  to  have  been  sup- 
posed in  Turner  v.  City  of  Mobile, 
135  Ala.  73,  33  South.  133,  142,  by 
McClellan,  C.  J.  For  numerous 
other  illustrations  of  this  class,  see 
§261,  note;  cases  denying  the  juris- 
diction in  class  third,  see  §  267,  note; 
cases  where  the  exercise  of  the 
jurisdiction  would  be  ineffectual, 
§  251 '^j  and  notes. 

§  274,  (a)  This  section  is  cited  in 
Nashville,  C.  &  St.  L.  R.  Co.  v. 
M'Connell,  82  Fed.  65,  75;  in  Smith 
v,  Dobbins,  87  Ga.  303,  13  S.  E.  496; 
in  Kellogg  v.  Chenango  Valley  Sav. 
Bank,  42  N.  Y.  Supp.  379,  11  App. 
Div.  458;  Jones  v.  Hardy,  127  Ala. 
221,  28  South.  504. 

§274,  (b)  See  ante,  §§  247,  256, 
and  notes;  Dodge  v.  Briggs,  27  Fed, 
IGO. 


§274 


EQUITY    JURISPRUDENCE. 


512 


none  in  the  subject-matter  or  title;  ^c  in  suits  by  a  single 
plaintiff  against  a  numerous  body  of  persons  to  establish 
his  own  right  and  defeat  all  their  opposing  claims,  where 
the  claims  of  these  persons  are  legally  separate,  arose  at 
different  times  and  from  separate  sources,  and  are  common 
only  with  respect  to  their  interest  in  the  question  involved 
and  in  the  kind  of*  relief  to  be  obtained  by  or  against 
each  ;3  d  in  suits  by  a  single  plaintiff  against  numerous  de- 

§  274,  2  Mayor  of  York  v.  PUkington,  1  Atk.  282 ;  City  of  London  v. 
Perkins,  3  Brown  Pari.  C,  Tomlins's  ed.,  602,  4  Brown  Pari.  C,  Tomlins's 
ed.,  157;  per  contra,  Dilley  v.  Doig,  2  Ves.  486  (no  jurisdiction  in  suit  by 
owner  of  a  patent  right  or  copyright  against  separate  infringers). 

§  274,  3  New  York  &  N.  H.  R.  R.  v.  Schuyler,  17  N.  Y.  592,  599,  600, 
605-608,  34  N.  Y.  30,  44-46;  Sheffield  Water  Works  v.  Yeomans,  L.  R. 
2  Ch.  8,  11;  Ware  v.  Horwood,  14  Ves.  28,  32,  33;  Board,  etc.,  v.  Deyoe, 
77  N.  Y.  219. 


§274,  (c)  See  ante,  §§  256,  261, 
and  cases  cited;  Central  Pac.  R.  B. 
Co.  V.  Dyer,  1  Saw.  641,  Fed.  Cas. 
No.  2,552;  Hyman  v.  Wheeler,  33 
Fed.  630;  De  Forest  v.  Thompson, 
40  Fed.  375;  Preteca  v.  Maxwell 
Land  Grant  Co.  (C.  C.  A.),  50  Fed. 
674;  Lasher  v.  MeCreery,  66  Fed. 
834,  843;  Beatty  v.  Dixon,  56  Cal. 
622;  Guess  v.  Stone  Mountain  I.  & 
R.  Co.,  67  Ga.  215;  South  Carolina 
R.  Co.  V.  Steiner,  44  Ga.  546;  City 
of  Albert  Lea  v.  Nielsen,  83  Minn. 
246,  86  N.  W.  83;  Bishop  v.  Eosen- 
baum,  58  Miss.  84;  Pollock  v.  Oko- 
lona  Sav.  Inst.,  61  Miss.  293;  Lowen- 
stein  V.  Abramsohn,  76  Miss.  890, 
25  South.  498;  Waddingham  v, 
Eobledo,  6  N.  M.  347,  28  Pac.  663; 
Vann  v.  Hargett,  22  N.  C.  (2  Dev. 
&  B.  Eq.)  31,  32  Am.  Dec.  689  (an 
important  case) ;  Stockwell  v.  Fitz- 
gerald, 70  Vt.  468,  44  Atl.  504;  Ellis 
V.  Northern  Pac.  R.  B.  Co.,  77  Wis. 
114,  45  N.  W.  811. 

§274,  (d)  Quoted  with  approval, 
Northern  Pac.  R.  R.  Co.  v.  Walker, 


47  Fed.  681,  by  Caldwell,  J.;  Hale  v. 
Allinson,  102  Fed.  790,  792.  See, 
also,  McLean  v.  Lafayette  Bank,  3 
McL.  415,  419,  Fed.  Cas.  No.  8,886; 
Woodruff  V.  North  Bloomfield  G.  M. 
Co.,  8  Saw.  628,  16  Fed.  25;  Chase  v. 
Cannon,  47  Fed.  674;  Louisville, 
N.  A.  &  C.  R.  Co.  V.  Ohio  Val.  1  &  C. 
Co.,  57  Fed.  42,  45;  Nashville,  C.  & 
St.  L.  R.  Co.  V.  McConnell,  82  Fed. 
65,  75;  Bailey  v.  Tillinghast  (C.  C. 
A.),  99  Fed.  801,  806,  807  (a  strik- 
ing ease) ;  Smith  v.  Dobbins,  87  Ga. 
303,  13  S.  E.  496;  Lockwood  Co.  v. 
Lawrence,  77  Me.  297;  Farmington 
Village  Corp.  v,  Sandy  River  Nat. 
Bank,  85  Me.  46,  26  Atl.  965;  Town 
of  Springport  v.  Teutonia  Sav. 
Bank,  75  N.  Y.  397;  Kellogg  v, 
Chenango  Valley  Savings  Bank,  42 
N.  Y.  Supp.  379,  11  App.  Div.  458; 
and  many  other  cases,  chiefly  recent, 
cited  ante,  note  to  §  261.  For  cases 
denying  the  jurisdiction,  see  ante, 
§  264,  notes.  For  cases  where  the 
exercise  of  the  jurisdiction  would  be 
ineffectual,  or  unnecessary,  see  ante, 


513 


TO   PREVENT    A    MULTIPLICITY    OF    SUITS. 


§275 


fendants,  parties  to  a  complicated  contract,  where  his  riglits 
against  each  are  similar  and  legal,  but  would  require,  for 
their  determination,  a  number  of  simultaneous  or  succes- 
sive actions  at  law;^  in  suits  by  a  single  party  against  a 
number  of  persons  to  restrain  the  prosecution  of  simul- 
taneous actions  at  law  brought  against  him  by  each  defend- 
ant, and  to  procure  a  decision  of  the  whole  in  one  proceed- 
ing, where  all  these  actions  depend  upon  the  same  questions 
of  law  and  fact.^  ® 

§  275.  Statutory  Jurisdiction. — In  addition  to  the  fore- 
going discussion  of  the  doctrine  as  forming  a  part  of  the 
general  equitable  jurisdiction,  there  remains  to  be  very 
briefly  considered   a   statutory  basis   of  the   jurisdiction 

§  274,  4  Black  v,  Shreeve,  7  N.  J.  Eq.  440,  456,  457. 

§274,  5  McHenry  v.  Hazard,  45  N.  Y.  580,  587,  588;  Board,  etc.,  v. 
Dej'oe,  77  N.  Y.  219.  See,  per  contra,  County  of  Lapeer  v.  Hart,  Harr. 
(Mich.)  157. 


§§  25iy2,  251%,  and  notes.  An  im- 
portant group  of  cases  of  this  class 
comprises  those  where  some  act  of  a 
single  defendant,  such  as  an  official 
board,  in  levying  taxes,  fixing  rates, 
etc.,  is  enjoined  for  the  purpose  of 
avoiding  a  multiplicity  of  suits,  not 
with  the  single  defendant,  but  with 
other  persons.  See  ante,  §  261,  note 
(b),  "Fourth  Class,"  (I),  (a),  (b) ; 
Smyth  V.  Ames,  169  U.  S.  466,  18 
Sup.  Ct.  418;  Haverhill  Gaslight  Co. 
V.  Barker,  109  Fed.  694;  Cummings 
V.  Merchants'  Nat.  Bank,  101  U.  S. 
153;  Hills  v.  National  Albany  Exch. 
Bank,  105  U.  S.  319,  5  Fed.  248; 
Albany  City  Nat.  Bank  v.  Maher,  19 
Blatchf.  184,  6  Fed.  417;  Whitney 
Nat.  Bank  v.  Parker,  41  Fed.  402; 
Third  Nat.  Bank  v.  Mylin,  76  Fed. 
385;  Western  Union  Tel.  Co,  v.  Poe, 
61  Fed.  449,  453;  Sanford  v.  Poe,  69 
Fed.  546,  548,  60  L.  R.  A.  641,  16 
C.  C.  A.  305;  Western  Union  Tel. 
1—33 


Co.  V.  Norman,  77  Fed.  13,  21; 
Taylor  v,  Louisville  &  N.  E.  Co. 
(C.  C.  A.),  88  Fed.  350;  Pyle  v. 
Brenneman,  122  Fed.  787;  Chesa- 
peake &  O.  B.  Co.  V.  Miller,  19  W. 
Va.  408. 

§  274,  (e)  The  text  is  cited  to  this 
effect  in  Cleveland  v.  Insurance  Co. 
of  North  America,  151  Ala.  191,  44 
South.  37;  Supreme  Lodge  of  Frater- 
nal Union  of  America  v.  Bay  (Tex. 
Civ.  App.),  166  S.  W.  46.  See  ante, 
§  261,  note  (b),  "Class  Fourth,"  (I), 
(a);  Guess  v.  Stone  Mountain  I.  & 
R.  Co.,  67  Ga.  215;  South  Carolina 
R.  Co.  v.  Steiner,  44  Ga.  546;  City  of 
Albert  Lea  v.  Nielsen,  83  Minn.  246, 
86  N.  W.  83;  Kellogg  v.  Chenango 
Valley  Sav.  Bank,  42  N.  Y.  Supp. 
379,  11  App.  Div,  458;  National 
Park  Bank  v.  Goddard,  62  Hun,  31, 
16  N.  Y.  Supp.  343,  2  Ames  Cas.  Eq. 
Jur.  82;  affirmed.  131  N.  Y.  503,  30 
N.  E,  566,  1  Keener's  Cas.  Eq.  Jur. 


§  275  EQUITY   JURISPRUDENCE.  514 

which  is  found  in  some  of  the  American  states.  In  the 
legislation  of  the  various  states  which  have  adopted  the 
reformed  system  of  procedure,  there  is  considerable  diver- 
sity with  respect  to  matters  of  detail;  the  attempt  to  put 
the  rules  concerning  remedies  and  remedial  rights,  whether 
legal  or  equitable,  into  a  statutory  form  is  carried  much 
further  in  some  of  the  states  than  in  others.  This  par- 
tial codification  in  several  of  the  states  has  resulted  in 
statutory  provisions  concerning  certain  equitable  remedies 
which  deal  with,  and  to  some  extent  regulate,  the  jurisdic- 
tion based  upon  the  prevention  of  a  multiplicity  of  suits. 
These  provisions  are  partly  declaratory  of  well-settled  doc- 
trines, and  partly  operate,  perhaps,  to  extend  the  jurisdic- 
tion beyond  its  original  limits;  they  do  not,  however,  pur- 
port to  define,  regulate,  and  fix  the  jurisdiction  as  a  whole.* 
The  legislation  of  California  may  be  taken  as  the  type. 
The  following  provisions  on  the  subject  are  found  in  its 
codes:  "Except  where  otherwise  provided  by  this  title,  a 
final  injunction  may  be  granted  to  prevent  the  breach  of  an 
obligation  existing  in  favor  of  the  applicant.  ...  3.  Where 
the  restraint  is  necessary  to  prevent  a  multiplicity  of  judi- 
cial proceedings.  "1  *'An  injunction  cannot  be  granted, — 
1.  To  stay  a  judicial  proceeding  pending  at  the  commence- 
ment of  the  action  in  which  the  injunction  is  demanded, 
unless  such  restraint  is  necessary  to  prevent  a  multiplicity 
of  such  proceedings.'* 2  The  first  of  these  provisions  is 
plainly  declaratory  of  the  familiar  doctrine  of  the  general 
equitable  jurisdiction.  By  the  second  provision  the  intent 
is  clear  to  abolish  the  use  of  the  injunction  to  restrain 
actions  at  law,  in  all  ordinary  cases  where  it  had  hereto- 
fore been  so  used;  but  to  permit  its  use  for  that  purpose 
whenever  it  might  be  necessary  in  order  to  prevent  a  multi- 

§  275,  1  Cal.  Civ.  Code,  §  3422, 

§  275.  2  Cal.  Civ.  Code,  §  3423.     Also,  Dakota  Civ.  Code,  §§  2014,  2016, 
2017. 

§275,  (a)  For    a    statutory   jurisdiction    in    Massachusetts,    see    Carr   -v. 
Silloway,  105  Mass.  543. 


515  JURISDICTION    ONCE   EXISTING    NOT   LOST.  §  276 

plicity  of  suits.  I  have  placed  in  the  foot-note  the  deci- 
sions which  have  given  a  judicial  interpretation  to  this 
clause.3 


SECTION  V. 

THE  DOCTRINE  THAT  THE  JURISDICTION  ONCE  EXISTING 
IS  NOT  LOST  BECAUSE  THE  COURTS  OF  LAW  HAVE  SUB- 
SEQUENTLY ACQUIRED  A  LIKE  AUTHORITY. 

ANALYSIS. 

§  276.  The  doctrine  is  applied  to  both  kinds  of  jurisdiction. 

§§  277,  278.  Where  the  jurisdiction  at  law  has  been  enlarged  entirely  by  the 
action  of  the  law  courts. 

§  278.  Ditto,  examples. 

§§  279-281.  Where  the  jurisdiction  at  law  has  been  enlarged  by  statute. 

§  280.  Ditto,  examples. 

§  281.  Where  such  statute  destroys  the  previous  equity  jurisdiction. 

§276.     Is   Applied  to   Both   Kinds   of   Jurisdiction. — 

There  is  still  another  principle  affecting  the  equitable 
jurisdiction,  which  remains  to  be  considered  in  all  its  rela- 
tions, namely :  Whenever  a  court  of  equity,  as  a  part  of  its 
inherent  powers,  had  jurisdiction  to  interfere  and  grant 
relief  in  any  particular  case,  or  under  any  condition  of 
facts  and  circumstances,  such  jurisdiction  is  not,  in  general, 
lost,  or  abridged,  or  affected  because  the  courts  of  law  may 
have  subsequently  acquired  a  jurisdiction  to  grant  either 
the  same  or  different  relief,  in  the  same  kind  of  cases,  and 
under  the  same  facts  or  circumstances.*    This  principle 

§  275,  3  Uhlfcldcr  v.  Levy,  9  Cal.  607,  614,  615 ;  Crowley  v.  Davis,  39 
Cal.  268,  269;  Pixley  v.  Huggins,  15  Cal.  134;  Hockstacker  v.  Levy,  11 
Cal.  76;  Gorham  v.  Toomey,  9  Cal.  77;  Anthony  v.  Dunlap,  8  Cal.  26; 
Rickett  v.  Johnson,  8  Cal.  34,  36;  Revalk  v.  Kraemer,  8  Cal.  66,  71,  68 
Am.  Dec.  304;  Chipman  v.  Hibbard,  8  Cal.  268,  270;  Agard  v.  Valencia, 
39  Cal.  292,  303 ;  Flaherty  v.  Kelly,  51  Cal.  145. 

§276,  (a)  Quoted  in  Van  Frank  v.  (N.   S.)    793,   85   Pae.   233;    cited   to 

St.   Louis,   C.    G.    &   Ft.   S.    R'y   Co.  this  effect  in  Howell  v.  Moores,  127 

(Mo.),  67  S.  W.  688,  691;  Chaves  v.  111.   67,    19    N.   E.   863;    Chapman   v. 

Myer,    13    N.    M.    368,    6    L.    R.    A.  American   Surety    Co.,   2Q1   Ill»  594, 


§  277  EQUITY    JURISPRUDENCE.  516 

has  already  been  briefly  mentioned  as  one  source  of  the 
concurrent  jurisdiction  ;i  but,  like  the  doctrines  discussed 
in  the  preceding  sections  of  this  chapter,  it  also  extends  to 
and  operates  in  the  exclusive  jurisdiction.  In  other  words, 
the  exclusive  jurisdiction  to  grant  purely  equitable  reliefs, 
as  well  as  the  concurrent  jurisdiction  to  confer  legal  reliefs, 
is  still  preserved,  although  the  common-law  courts  may  have 
obtained  authority  to  award  their  remedies  to  the  same 
parties  upon  the  same  facts> 

§  277.    Jurisdiction  at  Law  Enlarged  by  the  Law  Courts. 

This  subsequent  jurisdiction  of  the  courts  of  law  may  be 
acquired  in  either  of  two  modes:  by  the  virtual  legislative 
action  of  the  common-law  judges  themselves,  or  by  express 
statutory  legislation.  In  many  instances  it  has  happened 
that  the  law  courts,  by  abandoning  their  old  arbitrary  rules, 
and  by  adopting  notions  which  originated  in  the  court  of 
chancery,  and  by  enlarging  the  scope  and  effect  of  the 
common-law  actions,  have  in  process  of  time  obtained  the 
power  of  gi^'ing  even  adequate  relief  in  cases  and  under 
circumstances  which  formerly  came  within  the  exclusive 
domain  of  equity.  In  all  such  instances,  the  courts  of 
equity  have  continued  to  assert  and  to  exercise  their  own 
jurisdiction,  for  the  reason  that  it  could  not  be  destroyed, 
or  abridged,  or  even  limited  by  any  action  of  the  common- 
law  courts  alone.  The  enlargement  of  the  jurisdiction  at 
law,  by  the  ordinary  process  of  legal  development,  has  not, 
in  general,  affected  the  pre-existing  jurisdiction  of  equity.^ » 

§  276,  1  See  ante,  §  182. 

§  277,  1  Ej^re  v.  Everitt,  2  Riiss.  381,  382,  per  Lord  Eldon :  "This  court 
will  not  allow  itself  to  be  ousted  of  any  part  of  its  original  jurisdiction 
because  a  court  of  law  happens  to  fall  in  love  with  the  same  or  a  similar 

104  N.  E.  247;   Eooney  v.  Michael,  §277,   (a)    Cited  with  approval  in 

84  Ala.  585,  4  South,  421;  Condon  v.  Converse  v.  Sickles,  44  N.  Y.  Supp. 

Knoxville,    C.    G.    &    L.    E.    R.    Co.  1080,  16  App.  Div.  49  (affirmed,  161 

(Tenn.  Ch.  App.),  35  S.  W.  781.  N.  Y.  666,  57  N.  E.  1107). 

§  276,    (b)    Quoted    in    Chaves    v.  The   rule   is   stated   in   Sweeny   v. 

Myer,    13    N.    M.    368.    6    L.    R.    A.  Williams,   36   N.  J.   Eq.   627,   as  fol- 

(N.  S.)   793,  85  Pac.  233.  lows:   "When  courts  of  law  have  of 


517  JURISDICTION    ONCE    EXISTING    NOT    LOST.  §  278 

§  278.  The  following  are  some  of  the  most  important 
classes  of  cases  in  which  this  principle  has  been  applied 
and  the  equitable  jurisdiction  has  been  exercised,  although 
a  court  of  law  may  maintain  an  action  or  allow  a  defense 
upon  the  same  facts,  and  may  give  an  adequate  and  per- 
haps the  very  same  relief:  In  suits  to  recover  a  fund  im- 
pressed with  a  trust,  or  where  a  trust  relation  in  view  of 
equity  exists  between  the  parties,  where  the  plaintiff  might 
recover  the  same  sum  by  an  action  of  assumpsit  for  money 
had  and  received,  or  like  legal  action  ;i*  in  suits  involving- 
fraud,  mistake,  or  accident,  the  equitable  jurisdiction  being 
exercised  to  give  appropriate  relief  to  the  injured  party, 
although  a  court  of  law  has  assumed  power  to  grant  relief 
either  affirmatively  l3y  action,  or  negatively  by  allowing  a 
defense  ;2  in  suits  growing  out  of  the  relation  of  suretyship, 

jurisdiction."  See,  also,  Collins  v,  Blantern,  2  Wils.  341,  350,  per  Wilmot, 
C.  J.;  Atkinson  v.  Leonard,  3  Brown  Ch.  218,  224;  Harrington  v.  Du 
Chatel,  1  BroAvn  Ch.  124;  Bromley  v.  Holland,  7  Ves.  3,  19-21;  Kemp  v. 
Pryor,  7  Ves.  237,  249,  250 ;  Varet  v.  N.  Y.  Ins.  Co.,  7  Paige,  560,  567, 
568;  Rathbone  v.  Warren,  10  Johns.  587,  595;  People  v.  Houghtaling,  7 
Cal.  348,  351;  Wells  v.  Pierce,  27  N.  H.  503,  511-514;  Irick  v.  Black,  17 
N.  J.  Eq.  189,  198;  Sailly  v.  Elmore,  2  Paige,  497,  499;  Lane  v.  Marshall, 
1  Heisk.  30,  34;  State  v.  Adler,  1  Heisk.  543,  547,  548. 

§  278,  1  Kemp  v.  Pryor,  7  Ves.  237,  249,  250 ;  New  York  Ins.  Co.  v. 
Roulet,  24  Wend.  505;  Varet  v.  N.  Y.  Ins.  Co.,  7  Paige,  560,  567,  568; 
Kirkpatrick  v.  McDonald,  11  Pa.  St.  387,  392,  393. 

§  278,  2  People  v.  Houghtaling,  7  Cal.  348,  351 ;  Wells  v.  Pierce,  27 
N.  H.  503,  511-514;  Babcock  v.  McCamant,  53  111.  214,  217;  Boyce's  Ex'rs 
V.  Grundy,  3  Pet.  210,  215;  Humphries  v.  Bartee,  10  Smedes  &  M.  282,  295, 
296. 

their     own     notion     extended     tbeir  and     cited     in     Traders'     Bank     of 

jurisdiction    over    cases    theretofore  Canada  v.  Fraser,  162  Mich.  315,  127 

solely     cognizable     in     equity,     the  N.    W.    291.     Thus,    in    Converse    v. 

jurisdiction  of  the  latter  courts  has  Sickles,  44  N.  Y.  Siipp.  lOSO,  16  App. 

been    in    no    respect    abridged,    al-  Div.  49   (affirmed,  161  N.  Y.  666,  57 

though  when  the  jurisdiction  at  law  N.  E.  1107),  goods  were  obtained  by 

has    become    well     established,     the  fraud,  and  the  creditor  was  allowed 

equity  jurisdiction  has  been  in  some  to  maintain  a  bill  to  impress  a  trust 

cases  declined."  upon  the  proceeds  derived  from  tha 

§278,    (a)    The  text  is   quoted   in  sale.     This   section   of  tbo  text  waa 

Chaves    v.    Myer.    1.^    N.    M.    368,    6  cited  as  authority. 
L.  R.  A.    (N.  S.)    793,   85   Pac.   233; 


§  278  EQUITY   JURISPRUDENCE.  518 

brought  by  a  surety  against  bis  principal  for  an  exonera- 
tion, or  against  co-sureties  for  a  contribution,  or  against 
the  creditor  or  the  principal  to  be  relieved  from  liability 
on  account  of  the  creditor's  conduct,  or  for  any  other  ap- 
propriate relief,  although  courts  of  law  may  give  adequate 
relief  to  the  surety  by  action  upon  implied  contract,  or 
by  defense  to  an  action  brought  against  him  by  the  credi- 
tor ;2  b  in  suits  by  the  assignee  of  a  thing  in  action,  brought 
in  his  own  name  as  equitable  owner,  to  collect  the  amount 
due  ;^  <5  and  in  suits  to  set  aside  or  to  be  relieved  from,  or 
to  restrain  an  action  or  judgment  at  law  upon,  a  contract 
which  is  illegal,  although  the  illegality  may,  either  by  au- 
thority of  the  law  courts  themselves  or  by  express  statute, 
be  set  up  as  a  defense  to  an  action  at  law  brought  to  enforce 
the  contract,  and  may  thus  defeat  a  recovery  thereon;  as, 
for  example,  where  the  contract  is  usurious,  or  given  for  a 
gambling  debt,  or  other  illegal  consideration,  or  is  contrary 
to  good  morals.^  ^ 

§278,  3  Eyre  v.  Everitt,  2  Russ.  381,  382;  Sailly  v.  Elmore,  2  Paige, 
497,  499;  Minturn  v.  Farmers'  Loan  &  T.  Co.,  3  N.  Y.  498,  500,  501; 
Rathbone  v.  Wan-en,  10  Jolins.  587,  595,  596 ;  King  v.  Baldwin,  17  Johns. 
384,  388,  8  Am.  Dec.  415;  Irick  v.  Black,  17  N.  J.  Eq.  189,  198,  199; 
Wesley  Church  v.  Moore,  10  Pa.  St.  273,  278-282 ;  Montagne  v.  Mitchell, 
28  lU.  481,  486;  Smith  v.  Hays,  1  Jones  Eq.  321,  323;  Viele  v.  Hoag,  24 
Vt.  46,  51;  Hempstead  v.  Watkins,  6  Ai'k.  317,  355,  368,  42  Am.  Dec.  696; 
Heath  v.  Derry  Bank,  44  N.  H.  174. 

§  278,  4  Dobyns  v.  Mc Govern,  15  Mo.  662,  668 ;  but  the  jurisdiction  in 
such  cases  is  practically  very  much  limited.  See  Ontario  Bk,  v.  Mumford, 
2  Barb.  Ch.  596,  615 ;  post,  §  281. 

§  278,  5  Collins  v.  Blantern,  2  Wils.  341,  350,  per  Wilmot,  C.  J. ;  Brom- 
ley V.  Holland,  7  Ves.  3,  18-20;  Han-ington  v.  Du  Chatel,  1  Brown  Ch. 

§  278,    (b)    Suit    for    contribution,  the  conduct   of  the  suit   regard   the 

though,    there    is    ample    remedy    at  usee  as  the  real  plaintiff.     "Because 

law:  Briggs  v.  Barnett,  108  Va.  404,  the   law   tribunals   have   derived   an 

61  S.  E.  797.  indirect   remedy   it   should   not   oust 

§  278,  (c)  See  Taylor  v.  Reese,  44  the  original  jurisdiction  of  the  chan- 

Miss.   89.     In  this  case  it  was  held  eery." 

that    the    equity    courts    were    not  §278,    (d)    The    text    is    cited    in 

ousted    of    jurisdiction    because    the  Hightower  v.  Coalson,  151  Ala.  147, 

law  courts  permit  a  suit  in  the  name  125   Am.    St.    Rep.    20,    12   L.   E.   A. 

of    the    payee,    for    the    use    of    the  (N.  S.),  659,  44  South.  53. 
beneficial    equitable    holder,    and    in 


519  JURISDICTION    ONCE    EXISTING    NOT    LOST.  §  279 

§  279.  Jurisdiction  at  Law  Enlarged  by  Statute. — 
"Where,  on  the  other  hand,  the  new  power  is  conferred  upon 
the  law  courts  by  statutory  legislation,  the  rule  is  well 
settled  that  unless  the  statute  contains  negative  words  or 
other  language  expressly  taking  away  the  pre-existing  equi- 
table jurisdiction,  or  unless  the  whole  scope  of  the  statute, 
by  its  reasonable  construction  and  its  operation,  shows  a 
clear  legislative  intent  to  abolish  that  jurisdiction,  the  for- 
mer jurisdiction  of  equity  to  grant  its  relief  under  the  cir- 
cumstances continues  unabridged.*  It  follows,  therefore, 
that  where  the  statute  merely  by  affirmative  words  em- 
powers a  court  of  law  to  interfere  in  the  case,  and  to  grant 
a  remedy,  even  though  such  remedy  may  be  adequate,  and 
even  though  it  may  be  special  and  equitable  in  its  nature, 
the  previous  jurisdiction  of  equity  generally  remains. ^  ^ 

124;  Fanning  v.  Dunham,  5  Johns.  Ch.  122,  9  Am.  Dec.  283;  Gough  v. 
Pratt,  9  Md.  526;  Thomas  v.  Watts,  9  Md.  53C,  note;  Lucas  v.  Waul,  12 
Smedes  &  M.  157;  West  v.  Beanes,  3  Har.  &  J.  568;  White  v.  Washington, 
6  Gratt.  645,  649;  but,  as  examples  of  circumstances  in  which  the  juris- 
diction will  not  be  exercised,  see  Thompson  v.  Berry,  3  Johns.  Ch.  394, 
398;  Sample  v.  Barnes,  14  How.  70,  73,  75. 

§  279,  1  Atkinson  v.  Leonard,  3  Brown  Ch.  218,  224;  Toulmin  v.  Price, 
5  Ves.  235,  238,  239;  Ex  parte  Greenway,  6  Ves.  812,  813;  East  India  Co. 
V.  Boddam,  9  Ves.  464,  466-469;  Howe  v.  Taylor,  6  Or.  284,  291,  292; 
Force  v.  City  of  Elizabeth,  27  N.  J.  Eq.  408 ;  Case  v.  Fishback,  10  B.  Mon. 
40,  41;  Holdron  v.  Simmons,  28  Ala.  629;  Bright  v.  Newland,  4  Sneed, 
440,  442;  Payne  v.  Bullard,  23  Miss.  88,  90,  55  Am.  Dec.  74;  Grain  v. 
Barnes,  1  Md.  Ch.  151,  154;  Mitchell  v.  Otey,  23  Miss.  236,  240;  Wells 
V.  Pierce,  27  N.  H.  503,  511-514. 

§279,  (a)  Quoted  in  Crass  v.  Moiilton  v.  Smith,  16  E.  I,  126,  27 
Memphis  &  C.  R.  Co.,  96  Ala.  447,  11  Am.  St.  Rep.  728,  12  Atl.  891;  Wash- 
South.  480;  in  Greil  Bros.  Co.  v.  burn  v.  Van  Steenwyk,  32  Minn.  336, 
City  of  Montgomery,  182  Ala.  291,  349.  For  other  statements  of  the 
Ann.  Cas.  1915D,  738,  62  South.  692;  rule  see  Darst  v.  Phillips,  41  Ohio  at, 
in  Chapman  v.  American  Surety  Co.,  614;  Sweeney  v.  Williams,  36  N.  J. 
261  111.  594,  104  N.  E.  247.  Eq.  627;  Ludlow  v.  Simond,  2  Caines 

§279,   (b)   Cited  with  approval  in  Cas.    1,    2    Am.    Dec.    291;    Filler    v. 

Howell    V.    Moores,    127    111.    67,    19  Tyler,    91    Va.    458,    22    S.    E.    235; 

N.    E.    863;    Rooney   v.    Miehael,    84  Brandon  v.  Carter,  119  Mo.  572,  581, 

Ala.    585,    4    South.    421;    Black    v.  41  Am.  St.  Rep.  673,  675,   24  S.   W. 

Boyd,  50  Ohio  St.  46,  33  N.  E.  207;  1035.     See,  also,  Arnett  v.  Williams, 


§280 


EQUITY    JURISPRUDENCE. 


520 


§  280.  The  following  are  some  of  the  instances  in  which 
this  rule  has  been  applied,  and  the  equitable  jurisdiction 
has  been  asserted,  notwithstanding  the  statutory  power 
given  to  the  courts  of  law  under  the  same  condition  of 
facts  :^     In  suits  upon  lost  instruments,  bonds,  notes,  bills, 


226  Mo.  109,  125  S.  W.  1154.  In 
Black  V.  Boyd,  50  Ohio  St.  46,  33 
N.  E.  207,  the  court  said:  "Statutes, 
however,  that  abrogate  or  abridge 
that  jurisdiction  are  to  be  strictly 
construed,  and  if  the  restrictive  pur- 
pose is  not  clear,  it  will  not 
be  extended  by  construction."  In 
Thrasher  v.  Doig,  18  Fla.  809,  the 
rule  is  stated  as  follows:  "We  can- 
not assent  to  the  proposition  that  a 
remedy  in  equity  once  existing  is 
taken  away  by  the  fact  that  a  spe- 
cific remedy  at  law  has  been  created, 
unless  the  latter  is  expressly  de- 
clared by  the  law  to  be  the  only 
remedy."  But  see  Osborn  v.  Ordi- 
nary, 17  Ga.  123,  63  Am.  Dec.  230, 
where  the  court  said:  "In  reference 
to  partitions,  the  establishment  of 
lost  papers,  the  foreclosure  of  mort- 
gages, the  settlement  of  accounts, 
etc.  .  .  ,  notwithstanding,  by  the 
English  law  as  adopted  here,  chan- 
cery may  have  had  concurrent, 
or  even  exclusive  jurisdiction  over 
these  or  any  other  subject,  still  if 
full  redress  has  been  provided  by 
statute,  equity  in  that  case  is  ousted 
of  its  jurisdiction,  unless  a  special 
case  is  made  by  the  bill." 

The  rule  of  the  text  does  not  ap- 
ply to  those  cases,  necessarily  rare, 
where  courts  of  equity  have  invented 
a  remedy  subsequently  to  the  crea- 
tion of  a  remedy  by  statute  in  a 
particular  state;  the  statutory  rem- 
edy is  exclusive  in  that  state;  Van 
Frank  v.  St.  Louis,  C.  G.  &  Ft.  S. 
R'y  Co.  (Mo.),  67  S.  W.  688,  691. 
In   that   case  the   statutory  remedy 


granting  a  lien  to  certain  persons 
upon  the  property  of  an  insolvent 
railroad  company,  being  prior  in  re- 
spect to  the  time  of  its  creation  to 
the  equitable  remedy  invented  by 
the  federal  courts,  giving  priority 
over  mortgage  indebtedness  to  cer- 
tain classes  of  floating  debts  of  such 
companies,  was  held  to  be  exclusive 
of  the  latter  remedy. 

§280,  (a)  Miscellaneous  Illustra- 
tions of  the  Principle. — In  Crass  v. 
Memphis  &  C.  R.  R.  Co.,  96  Ala.  447, 
11  South.  480,  it  is  held  that  a  com- 
mon carrier  may  maintain  a  bill  to 
enforce  a  lien  although  a  statute  au- 
thorizes the  sale  of  freight  to  pay 
charges.  In  Black  v.  Boyd,  50 
Ohio  St.  46,  33  N.  E.  207,  it  was 
held  that  a  statute  providing  for 
jury  trial  in  actions  for  the  recovery 
of  money  only  does  not  abrogate  the 
equitable  jurisdiction  in  matters  of 
account.  In  Kelly  v.  Lehigh  Min.  & 
Mfg.  Co.,  98  Va.  405,  81  Am.  St. 
Eep.  736,  36  S.  E.  511,  it  was  held 
that  a  code  provision  which  makes 
more  effective  the  common-law  rem- 
edy of  detinue  does  not  affect  the 
jurisdiction  of  equity  to  decree  the 
specific  delivery  of  title  papers  to 
heirs-at-law,  devisees  and  other  per- 
sons properly  entitled  to  the  custody 
and  possession  of  the  title  deeds  of 
their  respective  estates,  where  they 
are  wrongfully  detained  or  withheld 
from  them.  In  Filler  v.  Tyler,  91 
Va.  458,  22  S.  E.  235,  it  was  held 
that  a  married  woman  may  obtain 
an  injunction  for  the  protection  of 
her    equitable    separate     estate    al- 


521 


JURISDICTION    ONCE    EXISTING    NOT    LOST. 


§280 


and  other  contracts  to  recover  the  amount  due;i^  in  suits 
for  the  establishment  or  admeasurement  of  dower,  although 

§  280,  1  Atkinson  v.  Leonard,  3  Brown  Ch.  218,  224;  Toulmin  v.  Price,; 
5  Ves.  235,  238  (and  see  note  2,  at  end  of  the  case,  p.  240,  Perkins's  ed.) ; 
Ex  parte  Green  way,  6  Ves.  812,  813  (see  notes  at  end  of  the  case,  p.  813, 
Perkins's  ed.) ;  East  India  Co.  v.  Boddam,  9  Ves.  464,  466-469;  Howe  v. 
Taylor,  6  Or.  284,  291,  292;  Allen  v.  Smith,  29  Ark.  74;  Hickman  v. 
Painter,  11  W.  Va.  386;  Force  v.  City  of  Elizabeth,  27  N.  J.  Eq.  408; 
Patton  V.  Campbell,  70  111.  72;  Hardeman  v.  Battersby,  53  Ga.  36,  38 
(ease  of  a  warehouseman's  receipt  for  cotton  lost  or  destroyed;  a  court  of 
equity  has  jurisdiction  of  a  suit  to  recover  the  cotton  described  in  the  eon- 
tract)  ;  but  see  Mossop  v.  Eadon,  16  Ves.  430,  433,  434,  in  which  the  chan- 
cellor refused  to  entertain  a  suit  on  a  lost  note  not  negotiable,  since  the 
holder  could  recover  at  law.  The  reason  given  for  this  decision  was,  that 
in  all  such  cases  (where  no  profert  was  ever  required  at  law),  the  only 
gi'ound  of  the  equitable  jurisdiction  was  the  power  of  the  court  to  order 
indemnity,  where  indemnity  was  necessary,  as  in  suits  on  lost  negotiable 
instruments;  but  no  indemnity  being  needed  in  cases  of    non-neootiable 


though  a  statute  may  furnish  a  com- 
plete and  adequate  remedy  at  law. 
A  statute  enlarging  the  jurisdiction 
of  courts  of  law  in  matters  relating 
to  husband  and  wife  does  not  de- 
prive equity  of  jurisdiction  of  a  con- 
tract between  husband  and  wife  re- 
lating to  separate  property.  Schroe- 
der  v.  Loeber,  75  Md.  195,  23  Atl. 
579,  24  Atl.  226.  State  statutes  pro- 
viding for  set-offs  at  law  do  not  de- 
prive courts  of  the  United  States  of 
jurisdiction  in  equity.  Sowles  v. 
First  Nat.  Bank,  100  Fed.  552.  The 
settled  jurisdiction  of  equity  over 
corporate  affairs  not  cut  off  by  the 
enactment  of  statutory  remedies: 
Ashton  V.  Penfield,  233  Mo.  391,  135 
S.  W.  938.  So,  the  jurisdiction,  in- 
dependent of  statute,  to  appoint  a 
receiver  of  an  insolvent  corporation 
at  the  suit  of  creditors  is  not  af- 
fected by  a  statute  providing  for  an 
action,  in  certain  cases,  by  the  at- 
torney-general: Richardson  v.  Peo- 
ple's Life  &  Accident  Ins.  Co.,  28 
Ky.  Law  Rep.  919,  92  S.   W.  284. 


The  statutory  suit  to  quiet  title 
does  not  deprive  equity  of  jurisdic- 
tion: Hutchinson  v.  Dennis,  217  Pa. 
290,  66  Atl.  524;  and  the  creation  by 
statute  of  the  Massachusetts  land 
court  did  not  oust  courts  of  equity 
of  their  jurisdiction  to  remove 
clouds  from  title,  since  the  remedy 
given  by  statute  is  not  as  compre- 
hensive, adequate  and  complete:  Me- 
Arthur  v.  Hood  Rubber  Co.,  221 
Mass.  372,  109  N.  E.  162. 

The  general  jurisdiction  to  author- 
ize a  trustee  to  borrow  money  for 
the  purposes  of  the  trust  is  not 
abridged  by  a  statute  authorizing 
borrowing  for  certain  purposes; 
Shirkey  v.  Kirby,  110  Va.  455,  135 
Am.  St.  Rep.  949,  66  S.  E.  40. 

§  280,  (b)  See,  also,  supporting 
and  citing  the  text,  Bohart  v. 
Chamberlain,  99  Mo.  622,  13  S.  W. 
85;  and  in  further  support  of  the 
text,  see  German  Nat.  Bk.  v.  Moore, 
116  Ark.  490,  173  S.  W.  401. 


§  280  EQUITY    JURISPRUDENCE.  522 

a  statutory  authority  over  matters  of  dower  has  been  given 
to  other  courts  ;2  <^  in  suits  to  be  relieved  from  a  contract  lia- 
bility on  account  of  a  failure  of  consideration,  although  a 
statute  has  permitted  the  fact  to  be  set  up  as  a  defense  in 
an  action  at  law  brought  on  the  contract  ;2  in  suits  to  en- 
force a  partnership  liability  or  the  payment  of  a  firm  debt 
by  the  estate  of  a  deceased  partner,  although  a  statute  has 
allowed  a  recovery  by  action  at  law  under  the  same  circum- 
stances, and  this  legal  remedy  is  adequate  ;^  where  a  statute 
had  authorized  similar  relief  in  the  action  by  a  court  of  law, 
it  did  not  interfere  with  the  equitable  jurisdiction  by  suit 
to  enforce  an  inchoate  lien  on  a  judgment  debtor's  land, 
created  by  an  imperfect  levy  by  execution,  where  the  exe- 
cution and  other  papers  had  all  been  lost  by  the  defend- 
ant's fraud  or  negligence;^  <^  a  statute  authorizing  a  gar- 
nishment or  attachment  by  a  proceeding  at  law  does  not 

notes,  equity  could  not  interfere.  This  reasoning  does  not  apply  to  those 
lost  instruments  of  which  profert  was  originally  requisite  in  actions  at 
law. 

§  280,  2  Jones  v.  Jones,  28  Ark.  19,  20 ;  Menifee  v.  Menifee,  8  Ark.  9. 

§  280,  3  Case  v.  Fishback,  10  B.  Mon,  40,  41 ;  and  see  Bromley  v.  Hol- 
land, 7  Ves.  3,  18-20. 

§  280,  4  Holdron  v.  Simmons,  28  Ala.  629 ;  Ala.  Code,  §  2142. 

§  280,  5  Bright  v.  Newland,  4  Sneed,  440,  442. 

§  280,     (c)     See,    also,    Efland    v.  equity  is  necessary  to  the  assertion 

Efland,  96  N.  C.  493,  1  S.  E.  858.    In  of  the  widow's  right  to  dower,  or  to 

Bishop  V.  Woodward,  103  Gti.  281,  29  secure  to  her  the  enjoyment  of  the 

S.  E.  968,  the  court  said:  "Under  the  dower  estate,  a  court  of  equity  will, 

practice  prevailing  in  this  state,  the  notwithstanding  the  provision  of  the 

remedy   provided  in   the   Code   must  Code,    entertain    a    petition    praying 

be  followed  as  the  exclusive  remedy  for    the    assignment    of    dower,    and 

when  it  is  applicable  to  the  facts  of  appropriate   and   adequate   relief   in 

the  case,  and  the  aid  of  a  court  of  aid  thereof." 

equity  is  not  necessary  to  the  asser-  §  280,    (d)   The  statutory  proceed- 

tion  of  the   right   of   dower,  or  the  ings     supplementary     to     execution 

protection   and   preservation   of    the  have  been  held  not   to   exclude   the 

dower    estate.     Where    this    remedy  equitable   remedy  by  creditor's  bill, 

cannot,    by    its    terms,    be    made    to  Enright     v.     Grant,     5     Utah,     334; 

apply,  or  where,  if  it  be  applicable  contra,  §  281,  note.     See  on  this  ques- 

80  far  as  the  assignment  of  dower  is  tion     Pom.     Eq.     Eem.,     "Creditors* 

concerned,  but  the  aid  of  a  court  of  Bills." 


523  JURISDICTION    ONCE    EXISTING    NOT    LOST.  §  280 

take  away  nor  abridge  the  equity  jurisdiction  to  enforce 
an  equitable  attachment  or  sequestration  by  suit  under  the 
same  circumstances  ;6 «  i^  suits  by  a  ward  against  his 
guardian  for  an  accounting  or  to  enforce  the  trust  duty, 
where  a  statute  has  given  jurisdiction  to  common-law 
courts  to  grant  any  similar  relief  ;'^  *  suit  by  a  creditor  to 
reach  the  separate  property  of  a  married  woman,  where 
an  action  at  law  for  the  same  purpose  has  been  permitted 
by  statute  ;Sg  in  suits  to  be  relieved  from  an  illegal  con- 
tract, or  to  restrain  an  action  brought  or  judgment  obtained 
thereon,  although  a  statute  has  permitted  the  illegality  to 
be  set  up  as  a  defense  in  bar  of  any  recovery  on  the  con- 
tract;^ statutes  permitting  actions  at  law  against  an  execu- 
tor or  administrator  under  particular  circumstances,  or  for 
special  purposes,  do  not  interfere  with  the  general  equity 
jurisdiction    over    the    administration    of    decedents'    es- 

§280,  6  King  v.  Payan,  18  Ark.  583,  587,  588;  Payne  v.  BuUard,  23 
Miss.  88,  90,  55  Am.  Dec.  74  (suit  by  a  judgtaent  creditor  of  a  corpora- 
tion to  recover  from  a  stockholder  the  unpaid  amount  due  on  his  stock, 
not  affected  by  a  statute  allowing  a  garnishment  at  law  of  such  stock- 
holder) ;  Lane  v.  Marshall,  1  Heisk.  30,  34;  but  see,  per  contra,  McGough 
V.  Insurance  Bank,  2  Ga.  151,  153,  154,  46  Am.  Dec.  382. 

§  280,  7  Grain  v.  Barnes,  1  Md.  Ch.  151,  154. 

§  280,  8  Mitchell  v.  Otey,  23  Miss.  236,  240. 

§  280,  9  Bromley  v.  Holland,  7  Ves.  3,  18-20;  Harrington  v.  Du  Chatel 
1  Brown  Ch.  124;  Clay  v.  Fry,  3  Bibb.  248,  6  Am.  Dec.  654;  Fanning  v 
Dunham,  5  Johns.  Ch.  122,  9  Am.  Dec.  283;  Gough  v.  Pratt,  9  Md.  526 
Thomas  v.  Watts,  9  Md.  526,  note;  Lucas  v.  Waul,  12  Smedes  &  M.  157 
West  V.  Beanes,  3  Har.  &  J.  568 ;  White  v,  Washington,  5  Gratt.  645,  648 
Day  V.  Cummings,  19  Vt.  495;  but,  per  contra,  see  Thompson  v.  Berry, 
3  Johns.  Ch.  394,  398;  Sample  v.  Barnes,  14  How.  70,  73,  75. 

§280,    (e)    The   text  is  quoted   in  §280,    (g)    Cited  to  this  effect  in 

Chaves   v.   Myer,    13    N.    M.    368,   6  First  Nat.  Bank  v.  Albertson  (N.  J. 

L.   E.  A.    (N.   S.)    793,   85   Pac.   233  Ch.),  47  Atl.  818.     See,  also,  Eooney 

(does  not  affect  equitable  remedy  of  v.    Michael,    84    Ala.    585,    4    South, 

following  trust  funds).  421;  Phipps  v.  Kelly,   12  Or.  213,  6 

§  280,    (f)    Chapman   v.    American  Pac.  707. 
Surety  Co.,  261  111.  594,   104  N.  E. 
247. 


§  280  EQUITY   JUEISPRUDENCE.  524 

tates;^®^  and  statutes  authorizing  courts  of  law  to  grant 
some  distinctively  equitable  relief  to  sureties,  by  means  of 
proceedings  in  actions  at  law,  do  not  alter  nor  abridge  the 
equitable  jurisdiction  over  suretyship,  even  in  giving  the 
very  same  relief  ;iii  and  a  statute  giving  common-law 
courts  the  power  to  correct  a  judgment  fraudulently  ob- 
tained does  not  affect  the  equity  jurisdiction  to  relieve 
against  fraudulent  judgments;  fraud  is  a  matter  of  equi- 
table cognizance,  and  the  jurisdiction  is  not  lost  by  legisla- 
tion giving  the  same  authority  to  courts  of  law ;  12  j  it  is  held 
in  several  of  the  states  which  have  not  adopted  the  reformed 
system  of  procedure  that  the  statutes  permitting  parties 
to  actions  at  law  to  testify  as  witnesses  on  their  own  behalf, 
and  to  be  examined  on  behalf  of  their  adversaries,  do  not 
in  any  manner  interfere  with  the  ancillary  jurisdiction  of 
equity  to  maintain  suits  for  a  discovery  without  relief,  in 

§  280,  10  Clark  v.  Henry's  Adm'r,  9  Mo.  336,  338-340;  Oliveira  v.  Uni- 
versity of  North  Carolina,  1  Phill.  Eq.  69,  70. 

§  280,  11  Irick  v.  Black,  17  N.  J.  Eq.  189,  198,  199;  Smith  v.  Hays,  1 
Jones  Eq.  321,  323;  Hempstead  v.  Watkins,  6  Ark.  317,  355,  368,  42 
Ajn.  Dec.  696 ;  Harlan  v.  Wingate's  Adm'r,  2  J.  J.  Marsh.  139,  140. 

§  280,  12  Babcock  v.  McCamant,  53  lU.  214,  217. 

§280,    (h)    A   statute   giving   pro-  eery   powers   of   a   court   of   equity. 

bate    courts    jurisdiction    of    claims  Security  Co.  v.  Hardenberg,  53  Conn, 

against  estates,  when  the   decedent  169,  2  Atl.  391. 

has  received  money  in  trust  for  any  §  280,     (i)     Missouri     Eev.     Stats, 

purpose,  does  not  exclude  the  juris-  1899,   §§   4504-4509,     providing     for 

diction  of  a  court  of  equity  to  en-  contribution    between    sureties,    and 

force   the   trust;   Howell   v.   Moores,  authorizing  an  action  at  law  by  one 

127  111.  67,  19  N.  E.  863,  citing  this  surety,  who  has  paid  more  than  his 

section    of    the    text.     And    an    act  proportion   of  the   debt,   to    recover 

authorizing  the  court  of  probate,  in  contribution     from     other     sureties, 

all   cases,  upon  request  of  the  life-  does  not  deprive  such  surety  of  his 

tenant,  to  order  the  executor  to  de-  right  to  sue  in  equity  for  contribu- 

liver  the  property  to  him  upon  his  tion.     Dysart  v.  Crow,  170  Mo.  275, 

giving  a  bond  that  it  shall  be  forth-  70  S.  W.  689. 

coming  for  the  remainderman  at  the  §280,  (j)  See,  also,  Darst  v.  Phil- 
termination  of  the  life  estate  does  lips,  41  Ohio  St.  514. 
not  interfere  with  the  general  chan- 


525  JURISDICTION    ONCE    EXISTING    NOT    LOST.  §  281 

aid  of  proceedings  at  law;i3k  \)^\^  this  conclusion  is  by  no 
means  unanimous.  It  has  been  decided  in  Pennsylvania 
that  the  peculiar  system  heretofore  existing  in  that  state 
of  administering  some  equitable  remedies  through  the  ma- 
chinery of  actions  at  law  is  not  abrogated  by  statutes  which 
conferred  a  limited  equity  jurisdiction  upon  the  courts.^'* 
The  radical  change  in  the  equitable  and  legal  procedure  ef- 
fected in  many  states,  which  permits  equitable  defenses  to 
be  set  up,  and  even  affirmative  equitable  relief  to  be  ob- 
tained, by  the  defendant  in  an  action  at  law  has  not,  it  has 
sometimes  been  held,  abridged  the  former  well-established 
jurisdiction  of  equity  to  restrain  actions  and  judgments  at 
law  on  the  ground  that  the  controversy  involved  some  equi- 
table right  or  interest  ;^^^  but  this  question  has  been  dif- 
ferently answered  by  different  courts,  and  on  account  of  its 
great  importance  it  will  be  separately  examined  in  the  fol- 
lowing chapter.16 

§  281.  When  Such  Statute  Destroys  the  Equity  Jurisdic- 
tion.— On  the  other  hand,  the  decisions  all  admit  that  if  the 
statute  contains  words  negativing  or  expressly  taking  away 
the  previous  equitable  jurisdiction,  or  even  if,  upon  a  fair 
and  reasonable  interpretation,  the  whole  scope  of  the  stat- 
ute shows,  by  necessary  intendment,  a  clear  legislative  in- 

§280,  13  Cannon  v.  McNab,  48  Ala.  99;  Millsaps  v.  Pfeiffer,  44  Miss. 
805;  but  per  contra,  Riopelle  v.  Dbellner,  26  Mich.  102;  Hall  v.  Joiner, 
1  S.  C.  186;  and  see  ante,  §§  193,  194. 

§280,  14Biddle  v.  Moore,  3  Pa.  St.  161,  175,  176;  Wesley  Church  v. 
Moore,  10  Pa.  St.  273,  279-282.  These  cases  arose  under  early  statutes?, 
which  gave  only  a  partial  equity  jurisdiction. 

§  280,  15  Dorsey  v.  Reese,  14  B.  Mon.  127,  128;  and  see,  on  this  ques- 
tion, Erie  Railway  Co.  v.  Ramsey,  45  N.  Y.  637;  Schell  v.  Erie  R'y  Co., 
51  Barb.  368. 

§280,  16  See  post,  §357. 

§  280,  (k)  In  Union  Passenger  R'y  chancery  did  not  abrogate  the  chan- 

Co.  V.  Mayor,  etc.,  of  Baltimore,  71  eery  jurisdiction. 

Md.   239,   17   Atl.   933,  it  was  held  §280,  (1)   See  Black  v.  Smith,  13 

that  a  statute  allowing  discovery  at  W.  Va.  780. 
law  where  it  might  be  allowed  in 


§  281  EQUITY   JURISPRUDENCE.  '  526 

tention  to  abrogate  such  jurisdiction,  then  the  former 
jurisdiction  of  equity  is  thereby  ended. ^  ^  The  following 
examples  will  illustrate  the  effect  of  such  enactments :  ^  A 
statute  authorizing  common-law  courts  to  render  a  judg- 
ment abating  a  private  nuisance  complained  of  in  an  action 
brought  to  recover  damages  therefor  was  held  to  have 
abrogated  the  equitable  jurisdiction  to  entertain  a  suit  for 
the  same  relief,  although  the  jurisdiction  to  restrain  a  pri- 
vate nuisance  remained  unaltered. 2  c  A  statute  permitting 
an  action  at  law  to  recover  compensation  for  work  and 
labor  or  other  services  rendered  to  a  trust  estate  on  the 
employment  of  a  trustee  has  taken  away  the  jurisdiction  of 
equity  by  suit  to  enforce  such  a  demand  as  a  lien  upon  the 
trust  property.2  ^  It  has  been  held  that  a  court  of  equity 
has  no  jurisdiction  to  entertain  a  suit  to  recover  the  amount 
due  on  a  lost  non-negotiable  note,  since  the  holder  has  a 
complete  remedy  at  law.*     The  statutes  permitting  the  par- 

§  281,  1  See  cases  cited  ante,  in  first  note  under  §  279. 
§  281,  2  Remington  v.  Foster,  42  Wis.  608,  609. 
§  281,  3  Askew  v.  Myrick,  54  Ala.  30. 

§  281,  4  Messop  v.  Eadon,  16  Ves.  430,  433,  434;  see  cases  cited,  ante, 
under  §§  279,  280. 

§  281,  (a)  See  Maclaury  v.  Hart,  it  was  held  that  a  surety  cannot 
121  N.  Y.  636,  24  N.  E.  1013,  where  maintain  a  suit  in  equity  to  compel 
the  court  said  that  "a  court  of  the  owner  of  a  promissory  note  to 
equity  is  never  at  liberty  to  draw  to  bring  suit  on  it  and  proceed  to  col- 
its  general  jurisdiction  a  question  lect  it,  for  an  adequate  remedy  is 
remitted  to  a  competent  and  suffi-  provided  by  sections  1210,  1211, 
cient  authority  by  express  command  Eev.  Stats.  1881. 

of  a  statute,  unless  under  some  very  §  281,      (c)      Compare,      however, 

exceptional  circumstances,  which  do  Bushnell  v.  Eobeson,  62  Iowa,  540,  17 

not  exist  here."     A  statute  provided  N.  W.   888,  where  a  similar  statute 

for  consolidation  of  church  corpora-  was  held  not  to   have  imposed  any 

tions  upon  consent  of  the  supreme  exception  upon  a  general  statutory 

court.    It  was  held  that  equity  could  provision    which   read:    "An   injunc- 

not  take  jurisdiction.  tion   may   be   obtained   in   all   cases 

§  281,   (b)   In  Moore  v.  Mclntyre,  where  such   relief  would   have  been 

110    Mich.    237,    68    N.    W.    130,    a  granted    in    equity   previous    to    the 

statutory     remedy     by     certiorari    in  adoption  of  this  code." 

matters  of   special   assessments  was  §281,    (d)    It   has   been   held   that 

held  to  be  exclusive.     In  Barnes  v.  statutory  proceedings  supplementary 

Sammons,  128  Ind.  596,  27  N.  E.  747,  to    execution    are    exclusive    of    the 


527  JURISDICTION    ONCE   EXISTING   NOT   LOST.  §  281 

ties  to  actions  at  law  to  be  examined  as  witnesses  are  held, 
in  several  of  the  states,  to  abolish  the  auxiliary  equitable  ju- 
risdiction of  discovery  in  aid  of  proceedings  in  courts  of 
law. 5  Whenever  a  legal  right  is  wholly  created  by  statute, 
and  a  legal  remedy  for  its  violation  is  also  given  by  the 
same  statute,  a  court  of  equity  has  no  authority  to  inter- 
fere with  its  reliefs,  even  though  the  statutory  remedy  is 
difficult,  uncertain,  and  incomplete. ^  ©  Finally,  where  there 
is  no  statute,  the  equitable  jurisdiction  may  become  unused, 
obsolete,  and  practically  abolished,  since  the  courts  of  law 
have  assumed  the  power  to  grant  a  simple,  certain,  and  per- 
fectly efficient  remedy.  The  practical  abandonment  of  the 
equity  jurisdiction  over  suits  by  the  assignees  of  ordinary 
things  in  action  is  a  striking  illustration  of  the  change 
which  may  thus  be  effected.  As  a  general  rule,  a  court  of 
equity  will  not  now  entertain  a  suit  brought  by  the  assignee 

§  281,  5  Hall  V.  Joiner,  1  S.  C.  186 ;  Riopelle  v.  Doellner,  26  Mich.  102. 
See  §§193,  194,209. 

§  281,  6  Janney  v.  Buel,  55  Ala.  408 ;  Coleman  v.  Freeman,  3  Ga.  137. 

equitable  remedy  of  a  creditor's  bill:  which  prescribes  a  mode  of  foreclos- 

Pacific   Bank    t.    Eobinson,    57    Cal.  ure,  the  prescribed  remedy  is  usually 

520,   40  Am.   Rep.    120;    contra,   see  exclusive,  but  such  lien  may  be  en- 

aiite,  §  280,  note.     See  on  this  ques-  forced   in  chancery   when   necessary 

tion     Pom.     Eq.     Rem.,     "Creditors'  to  do  complete  justice  between  the 

Bills."  parties   or   when   there   is   a   special 

§  281,    (e)    See   Dimmick   v.   Dela-  cause  for  chancery  interposition  and 

ware,  L.  &  W.  R.  R.  Co.,  180  Pa.  St.  the  enforcement   in    equity    of    such 

468,  36  Atl.  866.     This  paragraph  of  Hen  is   incidental  and  necessary  to 

the  text  is  cited  to  the  same  effect  the  enforcement  of  such  other  equi- 

in  Sheffield  City  Co.  v.  Tradesmen's  ties  in  the  suit,  but  in  such  cases  the 

Nat.  Bank,   131  Ala.   185,  32   South.  prerequisites   of  the  statute  for  en- 

598;    citing   Chandler   v.   Hanna,    73  forcement  must  be  complied  with  in 

Ala.   392   (statutory  remedy  for  en-  so   far  as  practicable   in   a   court  of 

forcement  of  mechanics'  lien  is   ex-  equity:   Wynn  v.  Tallapoosa  County 

elusive) ;    Walker    v.    Dainwood,    80  Bank,   168   Ala.   469,   53   South.   228. 

Ala.  245;  Corrugating  Co.  v.  Thacher,  A   statute   providing   how  boundary 

87  Ala.  458,  465,  6  South.  366;  Phil-  pillars    in    mines    should    be    deter- 

lips    V.    Ash's    Heirs,    63    Ala.    414;  mined,    both    as    to    necessity    and 

Wimberly  v.  Mayberry,  94  Ala.  255,  width,    provided    an    exclusive    rem- 

14    L.    R.    A.    305,    10    South.    157.  edy:  Curran  v.  Delano,  235  Pa.  478, 

Where   a  lien  is  given  by  statute,  84  Atl.  452, 


§  281  EQUITY   JURISPRUDENCE.  528 

of  a  debt  or  of  a  chose  in  action  which  is  a  mere  legal  de- 
mand.'^ f  The  recent  statutes  of  many  states,  as  well  as  of 
England,  requiring  the  assignee  to  sue  at  law  in  his  own 
name  confirm  and  establish  this  rule. 

§  281,  7  Ontario  Bank  v.  Mumford,  2  Barb.  Ch.  596,  615,  per  Walworth, 
C. :  "As  a  general  rule,  this  court  will  not  entertain  a  suit  brought  by  the 
assignee  of  a  debt  or  of  a  chose  in  action  which  is  a  mere  legal  demand; 
but  will  leave  him  to  his  remedy  at  law  by  a  suit  in  the  name  of  the  as- 
signor (citing  Carter  v.  United  Ins.  Co.,  1  Johns.  Ch.  463;  Hammond  v. 
Messinger,  9  Sim.  327;  Moseley  v.  Boush,  4  Rand.  392;  Adair  v.  Win- 
chester, 7  Gill  &  J.  114;  Smiley  v.  Bell,  Mart.  &  Y.  378,  17  Am.  Dec.  813). 
Where,  however,  special  circumstances  render  it  necessary  for  the  assignee 
to  come  into  a  court  of  equity  for  relief,  to  prevent  a  failure  of  justice, 
he  will  be  allowed  to  bring  a  suit  here  upon  a  mere  legal  demand";  citing 
as  an  example,  Lenox  v.  Roberts,  2  Wheat.  373. 

§  281,  (f )  The  text  is  cited  to  tbis  101   Atl.   870    (courts   of  equity  not 

effect  in  Close  v.  Independent  Gravel  ousted  of  this  jurrsdiction,  but  will 

Co.,  156  Mo.  App.  411,  138  S.  W.  81;  not   entertain  suits  unless   adequate 

and  quoted  in  Illinois  Finance  Co.  v.  relief  cannot  be  given  at  law). 
Interstate  Bural  Credit  Ass'n  (Bel.), 


529  ABSTRACT   OF   LEGISLATIVE   PROVISIONS.  §  282 


CHAPTER  III. 

THE  JURISDICTION  AS  HELD  BY  THE  COURTS  OF 
THE  SEVERAL  STATES,  AND  BY  THE  COURTS 
OF  THE  UNITED  STATES. 


SECTION  I. 
ABSTRACT  OF  LEGISLATIVE  PROVISIONS. 

ANALYSIS. 

§  2S'2.     Source  of  jurisdiction,  both  legal  and  equitable,  of  tbe  courts  in  tlie 

American  states. 
§  283.     Division  of  the  states  into  four  classes  with  respect  to  the  amount  of 

equity  jurisdiction  given  to  their  courts. 
§  284.     The  first  class  of  states. 
§  285.     The  second  class  of  states. 
§  286.     The  third  class  of  states. 
§  287.     The  fourth  class  of  states. 
§  288.     Summary  of  conclusions. 

§  282.    Source  of  the  Jurisdiction  of  the  American  Courts. 

In  the  preceding  chapters  I  have  described  the  general 
equitable  jurisdiction  in  its  condition  of  complete  develop- 
ment, unabridged  by  any  express  statutory  legislation,  as  it 
has  been  exercised  by  the  English  court  of  chancery.  As 
a  matter  of  fact,  however,  this  unlimited  jurisdiction  is  not 
now  possessed  by  any  American  tribunal,  state  or  national. 
In  every  commonwealth  some  important  branch  of  it  has 
been  lopped  off  by  statute.  It  becomes  necessary,  there- 
fore, that  I  should  give,  in  addition  to  the  foregoing  gen- 
eral discussion,  some  account  of  the  particular  jurisdiction 
which  now  exists  in  the  courts  of  each  state  and  of  the 
United  States ;  that  I  should  show  to  what  extent  the  powers 
of  the  English  chancery  have  been  conferred  or  withheld  by 
the  state  and  national  constitutions  and  legislation.  To 
this  end  I  shall  first  exhibit  the  statutory  basis  and  author- 
ity for  the  jurisdiction  which  are  found  in  the  laws  of  the 

1—34: 


§  282  EQUITY    JURISPRUDENCE.  530 

United  States  and  of  all  tlie  individual  states.  This  pre- 
liminary explanation  is  absolutely  essential  to  a  correct  un- 
derstanding of  the  American  equity  jurisprudence,  since  the 
equitable  powers  held  by  all  our  courts,  whether  of  the 
nation  or  of  the  states,  are  wholly  derived  from  and 
measured  by  the  provisions  of  statutes  or  of  constitutions. 
The  highest  courts  of  original  jurisdiction  in  each  of  the 
states  are  understood  to  derive  their  common-law  powers, 
substantially  co-extensive  with  those  possessed  by  the 
superior  law  courts  of  England,  merely  from  the  fact  of 
their  being  created  as  such  tribunals,  and  without  any  ex- 
press grant  of  authority  being  essential.  Although  such  a 
grant  of  authority  or  enumeration  of  powers  has  frequently 
been  made  either  by  the  constitutions  or  by  the  statutes  of 
different  states,  this  was  really  unnecessary.  These  tri- 
bunals are  deemed  to  possess  by  their  very  creation  all 
the  common-law  powers,  not  incompatible  with  our  institu- 
tions, which  have  not  been  expressly  withheld  or  prohibited, 
in  the  same  manner  as  the  state  legislatures  are  understood 
to  hold  by  their  very  creation  all  the  authority  of  the 
English  Parliament  not  expressly  withdrawn  by  the  na- 
tional and  state  constitutions.  It  is  not  so  with  the  equi- 
table jurisdiction  of  the  American  courts.  For  that  there 
must  be  an  authority  either  expressly  conferred,  or  given 
by  necesssary  implication  from  the  express  terms,  in  some , 
provision  of  the  constitution  or  of  a  statute.  In  other 
words,  the  American  state  courts  do  not  derive  their  equi- 
table powers,  as  they  do  their  common-law  functions,  as  a 
part  of  the  entire  common-law  system  of  jurisprudence 
which  we  have  inherited  from  England,  and  which  is 
assumed  to  exist  even  independently  of  legislation;  their 
equitable  jurisdiction  is  wholly  the  creature  of  statute,  and 
is  measured  in  each  state  by  the  extent  and  limitations  of 
the  statutory  authority.^ 

§  282,  1  It  hardly  need  be  said  that  the  constitution  of  the  state  is  here 
indnded  under  the  designation  "statute";  for  the  constitution  is  only  a 
hio-lier  and  more  compulsory  statute.     Certain  decisions  may  be  found  in 


531  ABSTRACT    OF    LEGISLATIVE    PROVISIONS.  §  283 

§  283.  Amount  of  Equity  Jurisdiction  —  Four  Classes  of 
States. — In  some  of  the  states  this  statutory  delegation 
of  power  is  so  broad  and  comprehensive  that  the  jurisdic- 
tion which  it  creates  is  substantially  identical  with  that 
possessed  by  the  English  court  of  chancery,  except  so  far  as 
specific  subjects,  like  administration,  have  been  expressly 
given  to  different  tribunals;  but  in  others  the  delegation 
of  power  is  so  special  in  its  nature  and  limited  in  its  extent 
that  a  reference  to  the  statutes  themselves  on  the  part  of 
the  courts  as  the  source  and  measure  of  their  jurisdiction 
is  a  matter  of  constant  practice  and  of  absolute  necessity. 
A  correct  knowledge  of  these  statutory  provisions  in  the 
various  states  is  of  the  highest  importance  from  another 
point  of  view;  without  it  the  force  and  authority  of  deci- 
sions rendered  in  any  particular  state  cannot  be  rightly  ap- 
preciated by  the  bench  and  bar  of  other  commonwealths.^ 
It  will  not  be  found  necessary  to  examine  in  detail  the  stat- 
utes of  each  state  separately.  A  comparatively  few  distinct 
types  of  legislation  have  been  adopted  and  closely  followed 
throughout  the  constitutions  and  statutes;  and  it  is  pos- 
sible to  arrange  all  the  states  into  a  few  classes,  in  each  of 
which  the  equitable  jurisdiction  is  substantially  the  same 
with  respect  to  its  statutory  origin,  nature,  and  extent, 
although  some  differences  may  exist  in  the  judicial  inter- 
pretation given  to  these  legislative  provisions.  Such  dif- 
ferences will  be  noticed  in  a  subsequent  section  of  this 
chapter.  This  classification  is  made  without  any  reference 
to  the  external  form  and  organization  of  the  courts,  and  is 

a  very  few  states  holding  that  the  equity  jurisdiction  of  those  states  is 
commensurate  with  that  possessed  by  the  English  ehaneeiy.  In  all  these 
states,  however,  a  constitutional  provision  not  only  created  a  court  of 
equity,  but  in  some  sufficient  words  conferred  upon  it  such  a  general 
jurisdiction. 

§  283,  1  As  an  illustration,  the  modern  decisions  in  Massachusetts  upon 
questions  of  general  equity  jurisprudence,  able  and  learned  as  they  are, 
would  often  be  very  misleading  in  other  states,  if  the  statutes  upon  which 
the  jurisdiction  of  its  courts  rests  were  not  accurately  known. 


§  284  EQUITY    JURISPRUDENCE.  532 

based  wholly  upon  the  amount  of  equitable  jurisdiction 
created  and  conferred  by  the  legislation. 

§  284.  1.  Class  First. — The  first  class  embraces  those 
states  in  which  the  constitutions  or  statutes  have  in  ex- 
press terms  created  and  conferred  an  equity  jurisdiction 
identical  or  co-extensive  with  that  possessed  by  the  English 
court  of  chancery,  so  far  as  is  compatible  with  our  forms 
of  government,  political  institutions,  and  public  policy.^ 
The  jurisdiction  thus  taken  as  the  criterion  and  measure  is 
that  held  and  exercised  by  the  English  court  of  chancery  by 
virtue  of  its  general  powers  as  a  court  of  justice;  and  it 
does  not  include  that  special  authority  or  jurisdiction  dele- 
gated to  the  chancellor  individually,  as  a  representative  of 
the  crown  in  its  capacity  of  parens  patrice.  This  latter 
authority,  so  far  as  it  exists  at  all,  is  possessed  only  by  the 
state  legislatures.  The  following  states  compose  this  class : 
Michigan,  New  York,  Vermont.^ 

§  284,  1  It  should  be  noticed,  however,  that  in  all  these  states,  notwith- 
standing the  broad  grant  of*  general  power,  certain  particular  subjects  be- 
longing to  the  jurisdiction  of  the  English  chancery  have  been  given  to  the 
exclusive  cognizance  of  some  other  tribunal,  and  thus  the  general  equitable 
jurisdiction  has  been  abridged.  The  administration  of  decedents'  estates 
is  a  very  striking  example,  which  has  been  intrusted  to  the  probate  courts. 

§284,  2  Michigan. — The  constitution  (art.  VI.)  establishes  a  supreme 
court  with  appellate  jurisdiction  only  (§3),  and  circuit  courts  which 
"shall  have  original  jurisdiction  in  all  matters,  civil  and  criminal,  not  ex- 
cepted in  this  constitution,  and  not  prohibited  by  law."  2  Comp.  Laws 
1871,  chap.  176,  §  1.*  "The  several  circuit  courts  of  this  state  shall  be 
courts  of  chancery  within  and  for  their  respective  counties";  and  Comp. 
Laws  1871,  §  21 :  *  "The  powers  and  jurisdiction  of  the  circuit  courts  in 
chanceiy  in  and  for  their  respective  counties  shall  be  co-extensive  with  the 
powers  and  jurisdiction  of  the  court  of  chancery  in  England,  with  the  ex- 
ceptions, additions,  and  limitations  created  and  imposed  by  the  constitution 
and  laws  of  this  state."  These  provisions  were  also  found  in  the  Revised 
Statutes  of  1846  (chap.  90),  which  abolished  the  former  separate  court  of 
chancery.    The  latter  of  the  two  sections  above  quoted  (viz.,  §  21)  was  also 

§284,      (*)      Michigan.  —  Howell's  §284,      (b)      Michigan.— RoweWa 

Stats.  1882,  §  6592.  Stats.,  §  6611. 


533  ABSTRACT    OF    LEGISLATIVE    PEOVISIONS.  §  285 

§285.  2.  Class  Second. — The  second  class  embraces 
those  states  in  which  the  constitutions,  not  in  express 
terms,  but  by  necessary  implication,  create  and  confer  a 
general  equity  jurisdiction  substantially  the  same  as  that 
possessed  by  the  English  court  of  chancery,  except  so  far 
as  modified  or  limited  by  other  portions  of  the  state  legis- 
lation. In  this  type  of  legislative  action,  no  attempt  is 
made  by  any  clause  to  particularly  define  the  extent  of  the 
jurisdiction  by  comparing  it  with  that  held  by  the  Eng- 
lish chancery;  the  language  employed  is  always  general; 
it  declares  that  certain  courts  ''have  power  to  decide  all 
cases  in  equity" ;  or  that  they  ''have  jurisdiction  in  equity," 
or  that  they  shall  exercise  their  powers  "according  to  the 
course  of  equity";  and  it  thereby  plainly  implies  that  the 
equity  powers  and  jurisdiction  thus  recognized  and  con- 
ferred are  substantially  those  possessed  by  the  English 

found  in  the  Revised  Statutes  of  1838  (p.  365,  §  23),  and  applied  to  the 
then  existing  separate  court  of  chancery. 

New  York. — The  constitutions  of  1777  and  1822  established  a  separate 
court  of  chancery,  and  a  supreme  court  with  general  original  jurisdiction  in 
law.  The  constitution  of  1846,  in  its  original  form,  and  as  amended  in 
1869,  provides  (art.  VI.,  §  6),  that  "the  supreme  court  shall  have  general 
jurisdiction  in  law  and  equity";  and  by  article  XIV.,  sections  5  and  6, 
that  all  the  powers  of  the  former  court  of  chancery  are  transferred  to  the 
supreme  court.  The  Revised  Statutes,  which  went  into  operation  in  1830, 
while  the  court  of  chancery  was  in  existence,  enact  (5th  ed.,  vol.  3,  pt.  III., 
chap.  1,  tit.  2,  art.  2,  §  42,  p.  264) :  "The  powers  and  jurisdiction  of  the 
court  of  chancery  are  co-extensive  with  the  powers  and  jurisdiction  of  the 
court  of  chancery  in  England,  with  the  exceptions,  additions,  and  limita- 
tions created  and  imposed  by  the  constitution  and  laws  of  this  state." 
This  continues  to  be  the  measure  of  the  equitable  jurisdiction  of  the  courts 
of  New  York,  although  both  the  legal  and  the  equitable  powers  are  now 
administered  together  by  the  same  court  and  in  the  same  proceeding. 

Vermont.— Hhe  General  Statutes  of  1862-70  (tit.  XV.,  chap.  20,  §  4)c 
confer  the  equity  jurisdiction  upon  the  judges  of  the  supreme  court  vir- 
tually acting  as  chancellors;  and  (Gen.  Stats.,  §2)*  define  the  extent  of 
that  jurisdiction  in  language  identical  with  that  found  in  the  statutes  of 
Michigan  and  of  New  York,  quoted  above. 

§  284,  (c)  And  the  Eevised  Laws  of  §  284,  (d)  Rev.  Laws,  695. 

1880,  §  698. 


§  285  EQUITY   JURISPRUDENCE.  534 

court  of  chancery.  In  many  of  these  states  the  general 
clause  is  added  by  way  of  limitation,  that  equity  powers 
shall  not  exist  where  there  is  "a  plain,  adequate,  and  com- 
plete remedy  at  law."  The  effect  given  to  this  provision 
will  be  explained  in  the  following  section.  It  should  be 
added,  however,  in  this  connection,  that  in  many  of  the 
states  the  ordinary  jurisdiction  of  equity  thus  conferred 
in  such  general  terms  is  greatly  abridged,  restricted,  or 
modified,  with  respect  to  some  of  its  branches  or  heads, 
by  other  statutes,  especially  by  those  defining  and  regu- 
lating the  powers  of  the  various  subordinate  courts.^  In 
this  class,  which  is  the  most  numerous  of  all,  are  included 
the  following  states:  Alabama,  California,  Connecticut, 
Delaware,  Florida,  Georgia,  Illinois,  Iowa,  Kentucky, 
Maryland,  Mississippi,  Nebraska,  Nevada,  New  Jersey, 
North  Carolina,  Oregon,  Ehode  Island,  Tennessee,  Virginia, 
West  Virginia,  Wisconsin,  and  the  United  States.^ 

§  285,  1  As  illustrations,  in  several  of  the  states  the  original  jurisdic- 
tion over  trusts  is  limited  by  statutes  abolishing  or  restricting  express 
trusts,  and  the  like;  and  in  nearly  all,  if  not  all,  of  them  the  jurisdiction 
over  the  administration  of  decedents'  estates  is  greatly  restricted,  or  per- 
haps taken  away,  by  statutes  giving  exclusive  power  in  such  matters  to 
courts  of  probate. 

§  285,  2  I  omit,  in  this  note,  all  reference  to  courts  of  appellate  juris- 
diction, as  unnecessary.  It  is  enough  to  say  that  in  every  state,  and  in  the 
United  States,  there  is  a  tribunal  with  such  a  jurisdiction  both  in  law  and 
in  equity. 

United  States. — Rev.  Stats.,  §  629 :  "Circuit  courts  have  jurisdiction  in 
all  suits  of  a  civil  nature,  at  common  law  and  in  equity,  where  the  matter 
ia  dispute  exceeds  the  sum  or  value  of  five  hundred  dollars,"  in  the  cases 
provided  for  by  the  constitution,  and  in  a  number  of  specified  cases  aris- 
ing under  statutes  of  Congress.  §  723 :  "Suits  in  equity  shall  not  be  sus- 
tained in  either  of  the  courts  of  the  United  States  in  any  case  where  a 
plain,  adequate,  and  complete  remedy  may  be  had  at  law."  These  provi- 
sions formed  sections  "11  and  16  of  chapter  20  of  the  Laws  of  1789,  com- 
monly known  as  the  "Judiciary  Act." 

Alabama. — Rev.  Code  1867,  §  698 :  *  "Ordinary  jurisdiction.  The  powers 
and  jurisdiction  of  the  courts  of  chancery  extend, — 1.  To  all  civil  causes 
in  which  a  plain  and  adequate  remedy  is  not  provided  in  the  other  judicial 

§  285,    (a)     Alabama.— Code    1886,  §  720. 


535  ABSTRACT    OF    LEGISLATIVE    PROVISIONS.  §  286 

§  286.  3.  Class  Third. — The  third  class  embraces  those 
states  in  which  the  constitutions  and  statutes  do  not  confer 

tribunals;  2.  To  all  cases  founded  on  a  gambling  consideration,  so  far  as 
to  sustain  a  bill  of  discovery  and  grant  relief;  3.  To  subject  an  equitable 
title  or  claim  to  real  estate  to  the  payment  of  debts;  4.  To  such  other 
cases  as  may  be  provided  by  law."  Rev.  Code  1867,  §  699 :*»  Extraordi- 
nary jurisdiction.  Chancellors  may  exercise  the  extraordinary  jurisdiction 
granted  to  such  officer  by  the  common  law  in  cases  of  necessity  when  ade- 
quate provision  has  not  been  made  for  its  exercise  by  some  other  officer 
or  in  other  courts,  and  with  the  exceptions,  limitations,  and  additions 
imposed  by  the  laws  of  this  state."  The  whole  state  is  separated  into 
three  "chancery  divisions,"  and  a  chancellor  is  appointed  in  each :  Rev. 
Code  1867,  §§  695,  697.« 

California. — Const.  1879,  art.  VI.,  §  4 :  "The  supreme  court  shall  have 
appellate  jurisdiction  in  all  cases  in  equity,  except  such  as  arise  in  jus- 
tices' courts,"  and  in  all  cases  at  law.  §  5 :  "The  superior  courts  shall 
have  original  jurisdiction  in  all  cases  in  equity,"  and  in  eases  at  law. 
Code  Civ.  Proc,  §  57 :  "The  jurisdiction  of  the  superior  courts  extends, — 
1.  To  all  civil  actions  for  relief  formerly  given  in  courts  of  equity,"  and 
also  to  other  civil  actions. 

Connecticut. — Gen.  Stats.  1875,  p.  40,  §  2 :  "The  superior  court  shall 
have  jurisdiction  of  all  suits  in  equity  which  are  not  within  the  sole  juris- 
diction of  other  courts."  P.  413,  §  2 :  Jurisdiction,  where  the  amount 
involved  does  not  exceed  five  hundred  dollars,  is  given  to  the  court  of  com- 
mon pleas,  and  for  cases  exceeding  that  amount,  to  the  superior  court. 
§  5 :  "Courts  having  jurisdiction  in  suits  in  equity  shall  proceed  therein 
according  to  the  rules  and  practice  of  equity,  and  take  cognizance  only 
of  matters  in  which  adequate  relief  cannot  be  had  in  the  ordinary  course 
of  law."  Note,  however,  that  this  clause,  so  far  as  it  speaks  about  the 
"proceeding  in  suits  in  equity  according  to  the  practice  of  equity,"  has 
l)een  modified  by  more  recent  legislation,  which  has  adopted  substantially 
the  principles  and  methods  of  the  reformed  procedure  (Practice  Act  of 
1879),  and  which  is  mentioned  in  a  subsequent  paragraph. 

Delaware. — The  constitution  (art.  VI.,  §  3)  establishes  a  court  of  chan- 
cery. §  5 :  "The  chancellor  shall  hold  the  court  of  chancery.  This  court 
shall  have  all  the  jurisdiction  and  powers  vested  by  the  laws  of  this  state 
in  the  court  of  chancery."  §  13 :  "Until  the  general  assembly  shall  other- 
wise provide,  the  chancellor  shall  exercise  all  the  powers  which  any  law 
of  this  state  vests  in  the  chancellor,  besides  the  general  powers  of  the  court 
of  chancery."     Rev.  Stats.  1852,  p.  320,  chap.  95,  §  1 :  "The  court  of  chan- 

§285,  (t»)  Code  1886,  §  721.  now     four    in    number.     CJode    188S, 

§285,    (c)    These    "divisions"    are       §713. 


§  286  EQUITY    JUEISPRUDENCB.  536 

a  general  equity  jurisdiction  by  any  single  comprehensive 
provision,  or  single  grant  of  power,  but  enumerate  and 

eery  shall  have  full  power  to  hear  and  decree  all  matters  and  causes  in 
equity;  .  .  .  provided,  that  the  chancellor  shall  not  have  power  to  deter- 
mine any  matter  wherein  sufficient  remedy  may  be  had,  by  common  law  or 
statute,  before  any  other  court  or  jurisdiction  of  this  state."  Jurisdiction 
in  several  particular  cases,  or  for  particular  reliefs,  is  also  given  by  other 
statutory  provisions. 

Florida.— Bush's  Digest  of  Statutes,  1872,  chap.  92,  §  22  :*  "Circuit 
courts  shall  have  original  jurisdiction  in  all  cases  of  equity,"  and  also  of 
law.  The  constitution  (art.  VI.,  §  8)  contains  exactly  the  same  provision. 
There  is  no  further  definition  or  description  of  the  equitable  jurisdiction. 

Georgia. — Const.  1868,  art.  V.,  sec.  2,  §  2 :  The  supreme  court  has  only 
an  appellate  jurisdiction.  Sec.  3,  §  2 :  The  superior  courts  have  "exclusive 
original  jurisdiction  in  equity  cases."  Code  1873,  p.  45,  §  218 :®  The 
supreme  court  has  an  appellate  jurisdiction  only.  Code  1873,  p.  50, 
§  246 :'  The  superior  courts  have  original  jurisdiction  and  authority  in  all 
civil  causes, — "2.  To  exercise  the  powers  of  a  court  of  equity." 

Illinois. — Const.,  art.  VI.,  §12:  "Circuit  courts  have  original  jurisdic- 
tion in  all  causes  in  law  and  equity."  Gross's  111.  Stats.  1871-74,  vol.  2, 
p.  31,  chap.  21,  §  1:^  The  circuit  courts  and  the  superior  courts  of  Cook 
county  (i.  e.,  of  Chicago),  "in  all  causes  of  which  they  may  have  jurisdic- 
tion as  courts  of  chancery,  shall  have  power  to  proceed  therein  according 
to  the  mode  herein  provided,  and  when  no  provision  is  made  by  this  act, 
according  to  the  general  usage  and  practice  of  courts  of  equity." 

Iowa. — Const.,  art.  5,  §  6 ;  "The  district  court  shall  be  a  court  of  law 
and  equity,  which  shall  be  distinct  and  separate  jurisdictions."  Code  of 
1873,  §  161 :  "The  district  courts  shall  have  and  exercise  general  original 
jurisdiction,  both  civil  and  criminal,  when  not  otherwise  provided."  §  162 : 
"The  circuit  court  shall  have  and  exercise  general  original  jurisdiction  con- 
current with  the  district  courts  in  all  civil  actions  and  special  proceedings." 
§  2507 :  All  forms  of  action  are  abolished ;  but  two  kinds  of  proceeding  by 
the  "civil  action"  are  allowed ;  namely,  the  "ordinary"  and  the  "equitable." 
§  2508 :  "Plaintiff  may  prosecute  his  action  by  equitable  proceedings  in  all 
cases  where  courts  of  equity,  before  the  adoption  of  this  code,  had  juris- 
diction, and  must  so  proceed  in  all  cases  where  such  jurisdiction  was 
exclusive." 

Kentucky. — Stanton's  Rev.  Stats.  1867,  vol.  1,  p.  310:**  "The  circuit 
court  has  original  jurisdiction  of  all  matters,  both  in  law  and  equity,  within 

§  285,  (d)  Florida.— MeJjeWan's  Di-  §  285,      (s)     7Z?Mi^ts.— Hurd's     El. 

gest,  1881,  chap.  52,  §  22.  Rev.  Stats.  1889,  p.  212,  chap.  22,  §  1. 

§285,     (e)     Georgia.— Gode     1882,  §285,    (h)    Kentucky.— Gen.   Stats. 

p.  55.  1887,  p.  353. 

§  285,  (f)  Code  1882,  p.  62. 


537  ABSTRACT    OF    LEGISLATIVE   PEOVISIONS.  §  286 

specify  the  particular  and  partial  heads  or  divisions  of 
equity  jurisprudence  over  which  the  jurisdiction  of  the 

its  county,  of  which  jurisdiction  is  not  by  law  exclusively  delegated  to 
some  other  tribunal."  Pp.  343,  3G0 :  A  special  court  is  establislied  in  cer- 
tain districts  for  the  hearing  and  decision  of  all  equitable  actions  which 
would  otherwise  be  heard  by  the  circuit  courts  of  those  districts. 

Maryland. — Code  1860,  p.  82,  §  56  :*  "The  judges  of  the  several  judicial 
circuits,  and  the  judge  of  the  circuit  court  for  Baltimore  city,  shall  each, 
in  his  respective  circuit,  have  and  exercise  all  the  power,  authority,  and 
jurisdiction  which  the  court  of  chancery  formerly  held  and  exercised,  ex- 
cept in  so  far  as  the  same  may  be  modified  by  this  code."  These  courts 
also  have  original  jurisdiction  in  cases  at  law. 

Mississippi. — Const.  1868,  art.  VI.,  §  4 :  The  supreme  court  has  only  an 
appellate  jurisdiction.  §  16 :  Chancery  courts  shall  be  established  in  each 
county.  Rev.  Code  1871,  p.  191,  chap.  9,  art.  3,  §  974  i  "The  chancery 
courts  shall  have  full  jurisdiction  in  all  matters  in  equity,  and  of  divorce 
and  alimony;  in  all  matters  testamentary  and  of  admmistration,  in  minors' 
business,  and  allotment  of  dower;  and  in  cases  of  idiocy,  lunacy,  and  per- 
sons non'  compos  mentis,  as  well  as  of  such  other  matters  and  cases  as 
may  be  provided  for  by  law." 

Nebraska. — Const.,  art.  XIV.,  %Z:^  "The  supreme  court  and  the  district 
courts  shall  have  both  chancery  and  common-law  jurisdiction."  * 

Nevada. — Const.,  art.  VI.,  §  6 :  "The  district  courts  in  the  several  judi- 
cial districts  shall  have  original  jurisdiction  in  all  cases  in  equity,"  and 
also  in  cases  at  law.  Comp.  Laws  1873,  §  925 ;  Gen.  Stats.  1885,  §  2439 : 
A  provision  exactly  the  same  as  the  last  preceding.  Comp.  Laws  1873, 
§  1064:"*  "There  shall  be  in  this  state  but  one  form  of  civil  action,"  etc. 
This  is  section  1  of  the  Code  of  Civil  Practice,  passed  March  8,  1869. 

New  Jersey. — The  constitution  (art.  VI.,  §  1)  establishes  a  court  of 
errors  and  appeals  of  the  last  resort  in  all  cases;  a  court  of  chancery;  a 
supreme  court;  and  circuit  courts.  §  4:  The  court  of  chancery  shall  con- 
sist of  a  chancellor.  §  5 :  The  supreme  court  and  circuit  courts  have  juris- 
diction at  law  only.  The  Digest  of  Laws  by  Nixon  (1709-1868)  contains 
no  statutory  provision  defining  the  extent  of  the  chancery  jurisdiction.  A 
late  statute  has  created  the  office  of  vice-chancellor. 

§285,    (1)    Maryland.— 'Pu.h.    Gen.  19,   §24:     "The  district    courts    shall 

Laws  1888,  art.  XVI,  §  70.  have    and    exercise    general,    original, 

§285,    (J)    Mississippi. — Rev.    Code  and  appellate  jurisdiction  in  all  mat- 

1880,  §  1829,  ters    both    civil    and    criminal,  except 

§  285,   (k)  Nebraska. — Const.  1875,  where  otherwise  provided." 

art.  VI,  §  9.  §  285,     (m)    Nevada.— Gen.    Stats. 

§  285,  (1)  Ck>mp.  Laws  1889,  chap.  1885,  §  3023. 


§  286  EQUITY    JURISPRUDENCE.  538 

courts  shall  extend,  with  various  restrictions  and  limita- 
tions.    The  equitable  jurisdiction  thus  created  in  any  state 

North,  Carolina. — The  constitution  of  1868  (art.  IV.,  §  1)  abolishes  the 
distinction  between  actions  at  law  and  suits  in  equity;  and  (§4)  creates  a 
supreme  court  and  superior  courts  having  jui'isdiction  in  law  and  in 
equity.  A  code  of  procedure  identical  with  that  originally  adopted  in  New 
York  has  been  enacted.  Rev.  Code  1854,  chap.  32,  §1:  "Each  superior 
court  of  law  shall  also  be  and  act  as  a  court  of  equity  in  the  same  county, 
and  possess  all  the  powers  and  authorities  within  the  same  that  the  court 
of  chancery  which  was  formerly  held  within  this  state  under  the  colonial 
government  used  and  exercised,  and  that  are  properly  and  rightfully  inci- 
dent to  such  a  court." 

Oregon. — The  constitution  (art.  VII.,  §  1)  creates  a  supreme  court  and 
circuit  courts,  etc.,  "having  general  jurisdiction,  to  be  defined,  limited,  and 
regulated  by  law."  §  9 :  "All  judicial  power,  authority,  and  jurisdiction 
not  vested  by  this  constitution,  or  by  laws  consistent  therewith,  exclusively 
in  some  other  court  shall  belong  to  the  circuit  courts."  The  Code  of  Civil 
Procedure  (§1),  General  Laws  of  Oregon,  1872  (p.  105),  abolishes  all 
forms  of  action  at  law,  but  not  the  distinction  between  actions  at  law  and 
suits  in  equity.  Code  Civ.  Proc,  §  376;  Gen.  Laws,  p.  189:  "The  enforce- 
ment or  protection  of  a  private  right,  or  the  prevention  of  or  redress  for 
an  injury  thereto,  shall  be  obtained  by  a  suit  in  equity,  in  all  cases  where 
there  is  not  a  plain,  adequate,  and  complete  remedy  at  law ;  and  may  be 
obtained  thereby  in  all  cases  where  courts  of  equity  have  been  used  to 
exercise  concurrent  jurisdiction  with  courts  of  law,  unless  otherwise  spe- 
cially provided  in  this  chapter." 

Rhode  Island. — The  constitution  (art.  IV.,  §  1)  creates  a  supreme  court. 
§  2:  "The  court  shall  have  such  jurisdiction  as  may  from  time  to  time  be 
granted  by  law.  Chancery  powers  may  be  conferred  on-  the  supreme  court, 
but  on  no  other  court  to  any  greater  extent  than  is  now  provided  by  law." 
Gen.  Stats.  1872,  p.  404,  chap.  181,  §  4 :»»  "The  supreme  court  shall  have 
exclusive  cognizance  and  jurisdiction  of  all  suits  and  proceedings  whatso- 
ever in  equity,  with  full  power  to  make  and  enforce  all  orders  and  decrees 
therein,  and  to  issue  all  process  therefor,  according  to  the  course  of 
equity." 

Tennessee.— The  constitution  (art.  VI.,  §  1)  establishes  a  supreme  court, 
and  "such  circuit,  chancery  and  other  inferior  courts  as  the  legislature 
shall  from  time  to  time  establish."  §  8 :  "The  jurisdiction  of  the  chancery 
.  .  .  courts  shall  be  as  now  established  by  law  until  changed  by  the  legis- 
lature." Comp.  Stats.  1872,  §  4279 :«  "The  chancery  courts  shall  continue 
to  have  all  the  powers,  privileges,  and  jurisdiction  properly  and  rightfully 

§285,     (n)     Ehode    Island. —  Pub.  §285,    (o)    Tennessee. — Code  1884, 

Stats.  1882,  p.  506,  chap.  192,  §  8.  §  5022. 


539  ABSTRACT    OF    LEGISLATIVE    PROVISIONS.  §  286 

is  not  co-extensive  with  that  possessed  by  the  English  court 
of  chancery,  but  is  partial,  and  to  a  considerable  extent 
fragmentary,  since  the  more  general  clauses  of  the  statutes 
have  naturally  been  confined  or  restricted  in  their  judicial 
interpretation  by  the  enumeration  of  special  powers  con- 
tained in  other  clauses.  In  all  these  states  the  legislation 
on  the  subject  has  been  progressive.    At  an  early  day  the 

incident  to  a  court  of  equity  by  existing  laws."  Comp.  Stats.  1872, 
§  4280  :P  "They  have  exclusive  original  jurisdiction  in  all  cases  of  an 
equitable  nature,  where  the  debt  or  demand  exceeds  fifty  dollars,  unless 
otherwise  provided  by  this  code."  Other  provisions  give  a  power  to  gi-aut 
equitable  relief  in  certain  specified  cases,  all  of  which,  however,  are  em- 
braced within  the  foregoing  general  authority. 

Virginia. — Code  1860,  chap.  158,  §  5,  p.  667  :*i  "The  circuit  court  of  each 
county  shall  have  jurisdiction  in  all  cases  in  chancery  and  all  actions  at 
law."  Certain  local  courts  are  also  established  in  particular  districts  hav- 
ing the  same  jurisdiction.  The  high  court  of  errors  and  appeals  is  entirely 
an  appellate  tribunal.  No  change  in  this  jurisdiction  seems  to  be  made  by 
subsequent  statutes. 

West  Virginia. — Const.,  art.  VI.,  §  6 :'  "Circuit  Courts  shall  have  origi- 
nal and  general  jurisdiction  of  all  matters  at  law  and  of  all  cases  in 
equity."  The  Code  of  1868  (chap.  112,  §  1),*  contains  a  provision  identi- 
cal with  the  foregoing. 

Wisconsin. — Const.,  art.  VII.,  §  2 :  "The  judicial  power  of  the  state,  both 
as  to  matters  of  law  and  equity,  shall  be  vested  in  a  supreme  court,  circuit 
courts,"  etc.  §  8:  Circuit  courts  have  original  jurisdiction  "in  all  matters 
civil  and  criminal  not  excepted  by  this  constitution  or  prohibited  by  law." 
Gen.  Stats.  1871,  vol.  2,  chap.  116,  §  5,  p.  1303 :  Circuit  courts  "have  origi- 
nal jurisdiction  in  all  cases,  both  of  law  and  equity";  and  (§9)  "shall 
have  power  to  issue  writs  of  injunction,  .  .  .  and  all  other  writs,  process, 
.  .  .  according  to  the  common  usage  of  courts  of  record  of  common  law 
and  of  equity  jurisdiction."*  Gen.  Stats.  1871,  §  22,  p.  1306 :  "Circuit 
courts  shall  have  original  jurisdiction  of  all  civil  actions."  The  distinc- 
tion between  actions  at  law  and  suits  in  equity  is  abolished,  and  one  "civil 
action"  is  established  for  all  private  rights  and  remedies. 

§285,   (P)   Code  1884,  §  502.S.  §285,   (t)   Wisconsiyi.— Stats.  1889, 

§285,     (a)     Virginia.— Code    1887,  §2420:    "The  circuit  courts  have  the 

§  3058.              ■  gemeral  jurisdiction  prescribed  by  the 

§  285,     (')     West     Virginia. —  Art.  constitution.  .  .  .  They  have  the  power 

VIII,  §  12.  to   hear   and   determine,   within   their 

§285,   (s)    And  the  Code  of  1884,  respective  circuits,  all  civil  actions  ajid 

chap.  112,  §  2.  pruceedings." 


§  286  EQUITY   JUEISPRUDENCE.  540 

equity  jurisdiction  was  either  wholty  withdrawn  from  the 
courts,  or  else  existed  within  extremely  narrow  bounds,  and 
it  has  from  time  to  time  been  enlarged  by  the  legislalare. 
For  this  reason  the  judicial  decisions  of  all  these  states 
should  be  carefully  examined  and  compared  with  the  stat- 
utes in  force  at  the  time  when  they  were  rendered;  other- 
wise their  true  scope  and  effect  may  be  misapprehended. 
The  following  states  are  embraced  in  this  class:  Maine, 
Massachusetts,  New  Hampshire,  Pennsylvania.^ 

§  286,  1  Maine.— Jiev.  Stats.  1871,  chap.  77,  §  2,  p.  581 :  The  supreme 
judicial  court  has  jurisdiction  in  law.  §  5,  p.  582 :  "It  has  jurisdiction  as 
a  court  of  equity  in  the  following  cases:  1.  For  the  redemption  of  estates 
mortgaged;  2.  For  relief  from  forfeiture  of  penalties  to  the  state,  and 
from  forfeitures  in  civil  contracts  and  obligations,  and  in  recognizances 
in  criminal  cases;  3.  To  compel  the  specific  performance  of  written  con- 
tracts, and  to  cancel  and  compel  the  discharge  of  written  contracts,  whether 
under  seal  or  othenvise,  when  a  full  performance  or  payment  has  been 
made  to  the  contracting  party ;  4.  For  relief  in  cases  of  fraud,  trusts,  acci- 
dent, or  mistake;  5.  In  cases  of  nuisance  or  waste;  6.  In  cases  of  partner- 
ship, and  between  the  part  owners  of  vessels  and  of  other  real  and  per- 
sonal property,  for  adjustment  of  their  interests  in  the  pi'operty  and 
accounts  respecting  it;  7,  To  detennlne  the  construction  of  wills,  and 
whether  an  executor  not  expressly  appointed  a  trustee  becomes  such  from 
the  provisions  of  a  will;  and  in  cases  of  doubt,  the  mode  of  executing  a 
trust,  and  the  expediency  of  making  changes  and  investments  of  property 
held  in  trust;  8.  In  cases  where  the  power  is  specially  given  by  statute; 
and  for  discovery  in  the  cases  before  named,  according  to  the  course  of 
chancery  practice;  9.  When  counties,  cities,  towns,  or  school  districts,  for 
a  purpose  not  authorized  by  law,  vote  to  pledge  their  credit,  or  to  raise 
money  by  taxation,  or  to  pay  money  from  their  treasury;  or  for  such  pur- 
pose any  of  their  officers  or  agents  attempt  to  i:>ay  out  such  money,  the 
court  shall  have  equity  jurisdiction  on  application  of  not  less  than  ten 
taxable  inhabitants  therein."  §  7 :  "Writs  of  injunction  may  be  issued  in 
cases  of  equity  jurisdiction,  and  when  specially  authorized  by  statute." 

Laws  1873,  chap.  140 :  "The  supreme  judicial  court  shall  have  jurisdic- 
tion in  equity  between  partners  or  part  owners,  to  adjust  all  matters  of 
partnership  between  such  part  owners,  compel  contribution,  and  make  final 
decrees." 

Laws  1874,  chap.  175,  p.  126:  Chapter  77  of  the  Revised  Statutes  (§  5), 
quoted  above,  is  amended  by  adding  the  following  subdivision :  "10.  And 
shall  have  fully  equity  jurisdiction,  according  to  the  usage  and  practice  of 


541  ABSTRACT    OF    LEGISLATIVE    PROVISIONS.  §  287 

§  287.  4.  Class  Fourth.  —  The  fourth  class  embraces 
those  states  in  which,  from  an  abandonment  of  the  ancient 
modes  of  procedure  inherited  from  the  law  of  England,  the 
constitutions  and  statutes,  in  their  grants  of  jurisdiction  to 

courts  of  equity,  in  all  other  cases,  where  there  is  not  a  plain,  adctjuate, 
and  complete  remedy  at  law." 

Laws  of  1876  (chap.  101,  p.  74)  is  amended  by  Laws  of  1877  (chap.  158, 
p.  119).  The  same  chapter  77  of  the  Revised  Statutes  (§  5)  is  amended 
again,  by  adding  the  following  subdivision :  "10.  In  suits  for  the  redelivery 
of  goods  or  chattels  taken  or  detained  from  the  owner,  and  secreted  or  with- 
held, so  that  the  same  cannot  be  replevied;  and  in  bills  in  equity  by  a 
creditor  or  creditors  to  reach  and  apply  in  payment  of  a  debt  any  property, 
right,  title,  or  interest,  legal  or  equitable,  of  a  debtor  or  debtors  residing 
or  found  within  this  state,  which  cannot  be  come  at  to  be  attached  or  taken 
on  execution  in  a  suit  at  law  against  such  debtor  or  debtors,  and  which  is 
not  exempt  by  law  from  such  attachment  and  seizure,  and  any  property 
or  interest  conveyed  in  fraud  of  creditors."  Laws  1877,  chap.  197,  p.  143 : 
The  same  chapter  77  of  the  Revised  Statutes  (§5)  is  amended  by  adding 
to  the  sixth  subdivision  the  following  words :  "And  in  cases  arising  out  of 
the  law  providing  for  the  application  of  receipts  and  expenditures  on 
railroads  by  trustees  in  possession  under  mortgage." 

In  addition  to  the  foregoing  grants  of  power,  various  provisions  of  the 
Revised  Statutes  also  give  an  equitable  remedy,  or  permit  the  court  to 
interpose  as  a  court  of  equity,  in  certain  other  special  cases,  as  follows: 
P.  139,  §  48,  suits  for  the  redemption  of  lands  sold  for  non-payment  of 
taxes;  p.  245,  §  29,  suits  by  town  otScers  to  restrain  county  officials  from 
improperly  constructing  a  highway  through  the  town ;  p.  331,  §  10,  suits 
between  general  and  special  partners;  p.  336,  §  5,  suits  by  owners  of 
cargo  against  ship-owners  for  discovery  and  payment,  in  cases  of  embezzle- 
ment, loss,  or  destruction  of  goods  by  master  or  seamen ;  p.  396,  §  19,  suits 
by  a  creditor  or  stockholder  to  wind  up  an  expired  corporation;  p.  398, 
§  31,  suits  to  compel  contribution  by  stockholders,  and  to  enforce  their  lia- 
bility for  the  corporation  debts ;  p.  399,  §  §  34,  35,  suits  by  judgment  cred- 
itors against  a  corporation  when  its  property  cannot  be  reached  by  attach- 
ment or  execution,  or  when  it  has  made  illegal  dividends;  pp.  410.  411, 
§§40,  46,  suits  by  creditors  against  directors  and  stockholdei's  of  a  bnnk 
for  unlawful  acts ;  p.  411,  §  47,  suits  by  a  stockholder  who  has  paid  debts 
of  a  bank,  against  the  directors  and  other  stockholders  for  a  contribution; 
p.  413,  §  57,  suits  by  ofiicial  bank  examiner  to  enjoin  bank  which  has  made 
over-issues,  or  is  unsound ;  p.  417,  §  74,  suits  by  receivers  of  banks  to 
recover  unpaid  assessments  from  stockholders,  when  necessary  to  meet 
demands  against  the  bank;  p.  422,  §§  99,  100,  101,  suits  by  the  trustees  or 


§  287  EQUITY    JUiRISPRUDENCB.  542 

tlie  courts,  make  no  distinction  between,  nor  even  any  men- 
tion of,  either  the  "law"  or  "equity."  All  these  states,  ex- 
cepting Louisiana  and  Texas,  have  adopted  the  reformed 
American  system  of  procedure.     Their  constitutions  and 

by  any  depositor  of  an  insolvent  savings  bank  to  compel  a  ratable  distribu- 
tion of  its  property;  p.  450,  §  10,  suit  by  the  person  entitled  against  a 
railroad  to  compel  payment  of  land  damages  awarded,  when  land  has  been 
taken,  and  to  enjoin  the  railroad  until  they  are  paid;  p.  458,  §  53,  suits 
by  railroads  to  redeem  from  mortgages ;  p.  4G2,  §  70,  in  all  controversies 
relating  to  trustees,  mortgages,  and  the  foreclosure  or  redemption  of  mort- 
gages of  railroads ;  p.  464,  §  77,  suits  to  enforce  awards  made  by  railroad 
commissioners  concerning  controversies  between  connecting  raili'oad  lines 
and  companies;  p.  492,  §  9,  suits  by  a  married  woman  to  control  and  in- 
vest for  her  own  use  the  damages  awarded  to  her  when  her  own  separate 
property  has  been  taken  for  public  uses;  p.  517,  §  63,  all  controversies  be- 
tween co-executors  or  co-administrators,  in  the  same  manner  as  those  be- 
tween copartners;  p.  541,  §§  10,  11,  suits  to  enforce  and  regulate  the 
execution  of  trusts;  p.  565,  §  14,  suits  to  compel  contribution  among  heirs, 
devisees,  and  legatees,  whenever  they  are  liable  to  contribute ;  p.  705,  §  13, 
suits  for  redemption  from  mortgages;  p.  787,  §  6,  suits  to  compel  the 
specific  performance  of  land  contracts,  after  the  vendor  has  died,  against 
his  heirs,  devisees,  administrators,  or  executors. 

Massachusetts. — The  following  provisions,  except  where  the  date  of  their 
enactment  is  specially  stated,  are  also  found,  with  some  difference  of  lan- 
guage, in  the  Revised  Statutes  of  1830 :  Gen.  Stats.  1873,  p.  558,  chap.  113, 
§  2.*  "The  court  may  hear  and  determine  in  equity  all  cases  hereinafter 
mentioned,  when  the  parties  have  not  a  plain,  adequate,  and  complete 
remedy  at  the  common  law,  namely:  1.  Suits  for  the  redemption  of  mort- 
gages, or  to  foreclose  the  same :  2.  Suits  and  proceedings  for  the  enforcing 
and  regulating  the  execution  of  trusts,  whether  the  trusts  relate  to  real  or 
personal  estate ;  3.  Suits  for  the  specific  performance  of  written  contracts, 
by  and  against  either  party  to  the  contract,  and  his  heirs,  devisees,  execu- 
tors, administrators,  and  assigns;  4.  Suits  to  compel  the  redelivery  of 
goods  and  chattels  taken  or  detained  from  the  owner,  and  secreted  or  with- 
held so  that  the  same  cannot  be  replevied;  5.  Suits  for  contribution  by  or 
between  legatees,  devisees,  or  heirs,  who  are  liable  for  the  debts  of  a  de- 
ceased testator  or  intestate,  and  by  or  between  any  other  persons  respec- 
tively liable  for  the  same  debt  or  demand,  when  there  is  more  than  one 
person  liable  at  the  same  time  for  the  same  contribution;  6.  Other  cases 
where  there  are  more  than  two  parties  having  distinct  rights  or  interests 
which  cannot  be  justly  or  definitely  decided  or  adjusted  in  one  action  at 

§286,      (a)      Massachusetts.— Gen.  Stats.  1882,  chap.  151,  §2. 


543  ABSTRACT    OF    LEGISLATIVE    PROVISIONS.  §  287 

statutes  confer  upon  the  courts  complete  power  and  juris- 
diction to  hear  and  determine  all  civil  causes,  or  to  grant 
all  civil  remedies;  and  they  thus  implicitly  include  a  full 
jurisdiction  in  cases  and  over  remedies  of  an  equitable  char- 

the  common  law;  7.  Suits  between  joint  tenants,  tenants  in  common,  and 
co-partners  and  their  legal  representatives,  with  authority  to  appoint  re- 
ceivers of  rents  and  profits,  and  apportion  and  distribute  the  same  to  the 
discharge  of  encumbrances  and  liens  on  the  estates,  or  among  co-tenants; 
8.  Suits  between  joint  trustees,  co-administrators,  and  co-executors,  and 
their  legal  representatives;  9.  Suits  concerning  waste  and  nuisance, 
whether  relating  to  real  or  personal  estate;  10.  Suits  upon  accounts,  when 
the  nature  of  the  account  is  such  that  it  cannot  be  conveniently  and  prop- 
erly adjusted  and  settled  in  an  action  at  law;  11.  Bills  by  creditors  to 
reach  and  apply  in  pajonent  of  a  debt  any  property,  right,  title,  or  inter- 
est, legal  or  equitable,  of  a  debtor,  within  this  state,  which  cannot  be 
come  at  to  be  attached  or  taken  on  execution  in  a  suit  at  law  against  such 
debtor  (Laws  1851,  chap.  206;  Laws  1858,  chap.  34) ;  12.  Cases  of  fraud 
and  conveyance  or  transfer  of  real  estate  in  the  nature  of  mortgage  (Laws 
1855,  chap.  194) ;  13.  Cases  of  accident  or  mistake;  14.  Suits  or  bills  for 
discovery,  when  a  discovery  may  be  lawfully  required  according  to  the 
course  of  proceedings  in  equity;  15.  And  shall  have  full  equity  jurisdiction 
according  to  the  usage  and  practice  of  courts  of  equity  in  all  other  cases 
where  there  is  not  a  plain,  adequate,  and  complete  remedy  at  law  (Laws 
1857,  chap.  214)."  By  the  laws  of  1875  (chap.  235), »»  jurisdiction  is  given 
to  entertain  creditors'  suits  by  judgment  creditors  to  reach  property  of 
the  debtors  fraudulently  transferred  to  or  held  by  others.  Other  statutes 
confer  special  powers  and  remedies  in  particular  cases,  most  of  which, 
however,  are  covered  by  some  one  of  the  foregoing  provisions.  Laws  1877, 
chap.  178,  p.  558,  §  1 :®  "The  supreme  judicial  court  shall  have  jurisdic- 
tion in  equity  of  all  cases  and  matters  of  equity  cognizable  under  the  gen- 
eral principles  of  equity  jurisprudence;  and  in  respect  of  all  such  cases 
and  matters  shall  be  a  court  of  general  equity  jurisdiction."  Laws  1877, 
chap.  178,  §  2 :  "The  last  paragi-aph  of  section  2  of  chapter  113  of  the 
General  Statutes,  beginning  with  the  words  'And  shall  have,'  is  hereby  re- 
pealed; but  this  repeal  shall  not  affect  any  cause  or  proceeding  now  pend- 
ing." This  statute  of  1877,  it  will  be  seen,  confers  a  much  broader  and 
more  unlimited  jurisdiction  than  had  been  given  by  any  previous  legisla- 
tive grant.* 

§  286,      (b)      Massacliusetts. —  Gen.  Laws  of  1883,  similar  jurisdiction  in 

Stats.  1882,  cliap.  151,  §  3.  equity  is  conferred  upon  the  superior 

§286,    (c)    Laws    1882,   chap.    151,  courts.     Section  14  of  the  act  pCTmits 

§  4.  equitable  defenses  in  actions  at  law. 

§286,    (d)    By  chapter  223   of  the 


§  287  EQUITY    JUKISPRUDENCE.  544 

acter,  as  well  as  those  of  a  legal  nature.  From  consider- 
ations of  convenience,  and  because  the  same  principle  of 
administration  is  now  common  to  the  whole  group,  I  have 
added  to  this  class  all  those  other  states  which  have  adopted 

New  Hampshire.— Gen.  Stats.  1867,  p.  388,  chap.  190,  §  1 :  "The  su- 
preme court  shall  have  the  powers  of  a  court  of  equity  in  cases  cognizal)le 
in  such  courts,  and  may  hear  and  determine,  according  to  the  course  of 
equity,  in  cases  of  charitable  uses,  trusts,  fraud,  accident,  or  mistake;  of 
the  affairs  of  co-pai'tners,  joint  tenants  or  owners,  or  tenants  in  common ; 
of  the  redemption  and  foreclosure  of  mortgages;  of  the  assignment  of 
dower;  of  contribution;  of  waste  and  nuisance;  of  specific  performance  of 
contracts;  of  discovery,  when  discovery  may  be  had  according  to  the  course 
of  proceeding  in  equity ;  and  in  all  other  cases  where  there  is  not  a  plain, 
adequate,  and  complete  remedy  at  law,  and  such  remedy  may  be  had  by 
proceedings  according  to  the  course  of  equity;  may  grant  writs  of  injunc- 
tion whenever  the  same  is  necessary  to  prevent  fraud  or  injustice."  §  2 : 
"When  goods  or  chattels  are  unlawfully  withheld  from  the  owner,  pro- 
ceedings in  equity  may  be  had  for  a  discovery,  for  a  restoration  of  the 
property,  and  for  such  other  relief  as  the  nature  of  the  case  and  justice 
may  require."  Section  3  provides  for  a  creditor's  bill  by  a  judgment  cred- 
itor whose  execution  has  been  returned  unsatisfied.  Laws  1874,  chap.  97, 
p.  340:  This  statute  reorganizes  the  entire  judicial  system,  changes  the 
courts,  and  transfers  all  jurisdiction  to  the  new  courts;  but  makes  no( 
alteration  in  the  existing  jurisdiction  itself. 

Pennsylvania. — Prior  to  the  legislation  hereinafter  mentioned,  the  courts 
of  Pennsylvania  possessed  no  equity  jurisdiction  whatever.  To  prevent 
the  absolute  failure  of  justice,  which  would  otherwise  have  followed,  they 
had  invented  a  curious  system,  by  means  of  which  some  equitable  principles 
and  rules  were  enforced,  and  some  equitable  reliefs  were  given,  through 
the  ordinary  common-law  foiTQS  of  action.  For  example,  in  the  action  of 
ejectment,  an  equitable  right  or  title  was  permitted  to  be  set  up  by  the 
defendant,  and  then  after  the  verdict  of  the  jury  the  equities  of  the  parties 
were  worked  out  by  an  alternative  or  conditional  judgment.  This  whole 
system  was,  of  course,  cumbrous,  and  could  only  be  applied  within  narrow 
limits.  The  change  made  by  the  legislature  has  been  gradual,  and  the  final 
steps  were  quite  recent,  of  which  the  following  is  a  summary:  Const,  (as 
amended  in  1838),  art.  V.,  §  6:  "The  supreme  court  and  the  several  courts 
of  common  pleas  shall,  besides  the  powers  heretofore  usually  exercised  by 
them,  have  the  power  of  a  court  of  chancery,  so  far  as  relates  to  the  per- 
petuation of  testimony,  the  obtaining  of  evidence  from  places  not  within 
the  state,  and  the  eases  of  the  persons  and  estates  of  those  who  are  non 
compos  mentis;  and  the  legislature  shall  vest  in  the  said  courts  such  other 


545  ABSTRACT    OF    LEGISLATIVE    PROVISIONS.  §  287 

the  reformed  procedure,  but  which  have  already  been  men- 
tioned either  in  the  first  or  the  second  of  the  foregoing 
classes.  As  a  matter  of  fact,  in  all  the  commonwealths 
where  the  reformed  procedure  prevails,  there  is  substan- 

powers  to  grant  relief  in  equity  as  shall  be  found  necessary ;  and  may  from 
time  to  time  enlarge  or  diminish  those  powers,  or  vest  them  in  such  other 
courts  as  they  shall  judge  proper  for  the  due  administration  of  justice." 
Const.  1873,  art.  V.,  §  1 :  A  supreme  court  and  courts  of  common  pleas 
are  established.  §  3 :  The  jurisdiction  of  the  supreme  court  is  appellate, 
except  that  "the  judges  shall  have  original  jurisdiction  in  cases  of  injunc- 
tion where  a  corporation  is  defendant."  §  20 :  "The  several  courts  of 
common  pleas,  besides  the  powers  herein  conferred,  shall  have  and  exer- 
cise, within  their  respective  districts,  subject  to  such  changes  as  may  be 
made  by  law,  such  chancery  powers  as  are  now  vested  by  law  in  the  several 
courts  of  common  pleas  of  this  commonwealth,  or  as  may  hereafter  be 
conferred  on  them  by  law." 

Brightly's  edition  of  Purdon's  Digest  (1700-1872),  vol.  1,  p.  589  (Act 
of  June  16,  1836,  §  1) :®  "The  supreme  court  and  the  several  coui-ts  of 
common  pleas  shall  have  the  jurisdiction  and  power  of  a  court  of  chancery, 
so  far  as  relates  to, — 1.  The  perpetuation  of  testimony;  2.  The  obtaining 
of  evidence  from  places  not  within  the  state;  3.  The  case  of  the  persons 
and  estates  of  those  who  are  non  compos  mentis;  4.  The  control,  removal, 
and  discharge  of  trustees,  and  the  appointment  of  trustees  and  the  settle- 
ment of  their  accounts;  5.  The  supervision  and  control  of  all  corporations 
other  than  those  of  a  municipal  character,  and  unincorporated  societies  and 
associations  and  partnerships;  6.  The  care  of  trust  moneys  and  property, 
and  other  moneys  and  property  made  liable  to  the  control  of  the  said 
courts ;  and  in  such  other  cases  as  the  said  courts  have  heretofore  possessed 
such  jurisdiction  and  powers  under  the  constitution  and  laws  of  this  com- 
monwealth." §  2 :  "The  supreme  court  when  sitting  in  bank  in  the  city 
of  Philadelphia  (extended  by  act  of  July  26,  1842,  to  the  judges  thereof 
sitting  at  nisi  prius  in  said  city),  and  the  court  of  common  pleas  for  the 
said  city  and  county  shall,  besides  the  powers  and  jurisdiction  aforesaid, 
have  the  powers  and  jurisdiction  of  courts  of  chancery  so  far  as  relates 
to,— 1.  The  supervision  and  control  of  partnerships  and  corporations  other 
than  municipal;  2.  The  care  of  trust  moneys  and  property  and  other 
moneys  and  property  made  liable  to  the  control  of  the  said  courts;  3.  The 
discovery  of  facts  made  material  to  the  just  detennination  of  issues  and 
other  questions  arising  or  depending  in  said  courts;  4.  The  determination 
of  rights  to  property  or  money  claimed  by  two  or  more  persons,  in  the 
hands  or  possession  of  a  person  claiming  no  right  or  property  therein ; 

§286,     (e)     Ed.    of    1883,    vol.    i,  p.   689. 
1—35 


§  287  EQUITY   JURISPRUDENCE.  546 

tially  the  same  amount  of  equitable  jurisdiction,  and  there 
are  also  the  same  limitations  upon  the  extent  and  exercise 
of  that  jurisdiction  growing  out  of  the  radical  change  in 
the  modes  of  administering  it  effected  by  the  reformatory 

6.  The  prevention  or  restraint  of  the  commission  or  continuance  of  acts 
contrary  to  law  and  prejudicial  to  the  interests  of  the  community  or  the 
rights  of  individuals;  6.  The  affording  specific  relief  when  a  recovery  iu 
damages  would  be  an  inadequate  remedy."  Act  of  June  13,  1840 :  "The 
equity  jurisdiction  of  the  supreme  court  within  the  city  of  Philadelphia 
and  of  the  court  of  common  pleas  for  said  city  shall  be  extended  to  all 
cases  arising  in  said  city  over  which  courts  of  chancery  entertain  jurisdic- 
tion on  the  grounds  of  fraud,  mistake,  accident,  or  account."  By  the  act 
of  April  11,  1845,  it  was  declared  that  this  provision  "should  be  construed 
to  include'"all  cases  of  fraud,  actual  or  constructive."  Act  of  October  13, 
1840:  "The  supreme  court,  district  courts,  and  courts  of  common  pleas 
within  this  commonwealth  shall  have  all  the  powers  and  jurisdiction  of 
courts  of  chancery  in  settling  partnership  accounts  and  such  other  accounts 
and  claims  as  by  the  common  law  and  usages  of  this  commonwealth  have 
hitherto  been  settled  by  the  action  of  'account  render,'  and  plaintiff  can 
sue  either  in  equity  or  at  law."  Act  of  April  10,  1848:  "The  supreme 
court  and  court  of  common  pleas  in  Philadelphia  shall  have  the  jurisdiction 
of  courts  of  chancery  in  all  suits  for  the  discovery  of  facts."  Act  of 
April  25,  1850:  The  powers  conferred  (by  act  of  June  16,  1836,  above), 
concerning  the  perpetuation  of  testimony,  are  extended  to  all  cases  of 
perjjetuating  lost  records.  Act  of  AprU  8,  1852 :  The  jurisdiction  con- 
ferred by  the  foregoing  acts  upon  the  supreme  court  in  and  for  the  city 
of  Philadelphia  is  extended  throughout  the  entire  state;  "provided  that 
said  court  shall  not  have  original  jurisdiction  by  virtue  of  this  act  to 
supervise  any  partnerships  or  unincorporated  associations  or  societies." 
Act  of  February  14,  1857:  The  jurisdiction  vested  by  the  foregoing  acts 
in  the  district  court  or  the  court  of  common  pleas  in  and  for  Philadelphia 
is  extended  to  all  the  courts  of  common  pleas,  throughout  the  state.  In 
addition  to  the  foregoing  somewhat  general  grants  of  authority,  other 
statutes  have  from  time  to  time  given  jurisdiction  or  power  to  grant  spe- 
-cial  relief  under  various  particular  circumstances,  the  most  important  of 
which  are  the  following:  Act  of  June  16,  1836:  Bills  for  discovery  in  favor 
of  judgment  creditors  are  allowed.  Act  of  March  17,  1845 :  The  supreme 
court  for  the  eastern  district  of  the  state,  and  the  court  of  common  pleas 
for  Philadelphia,  have  jurisdiction  of  all  cases  of  dower  and  of  partition 
within  Philadelphia;  and  by  act  of  April  15,  1858,  the  same  courts  have 
a  like  jurisdiction  in  cases  of  disputed  boundary  within  the  same  city. 
Act  of  April  25,  1850:   Suits  in  equity  for  au  accounting  between  eo- 


547  ABSTRACT    OF    LEGISLATIVE    PKOVISIONS.  §  287 

legislation.  The  fourth  class  is  thus  composed  of  the  fol- 
lowing states:  Arkansas,  Indiana,  Kansas,  Louisiana, 
Minnesota,  Missouri,  Ohio,  South  Carolina,  Texas,  and 
those  which  have  already  been  mentioned :  California,  Con- 
necticut, Iowa,  Kentucky,  Nebraska,  Nevada,  New  York^ 
North  Carolina,  Oregon,  Wisconsin.  To  these  may  be 
added  several  of  the  territories. ^ 

owners  of  mines  or  minerals  are  allowed.  Act  of  April  11,  1862 :  The 
supreme  court  has  all  the  powers  of  chancery  in  all  cases  of  mortgages 
i^ven  by  corporations.  Statute  of  March  15,  1873,  p.  301:  The  act  of 
April  5,  1860,  abridging  the  equity  jurisdiction  in  Philadelphia,  is  re- 
pealed, and  the  equity  jurisdiction  of  the  district  court  in  Philadelphia  is 
restored  as  it  was  before  said  act.  Statutes  of  1876,  May  5,  p.  123:  All 
courts  of  common  pleas  have  all  the  powers  of  a  court  of  chancery  in  all 
cases  of  or  for  the  enforcing  of  mortgages  on  the  property  or  franchises 
of  any  railroad,  canal,  or  navigation  corporation  situated  within  the  state. 
Statutes  of  1876,  May  8,  p.  134:  Equity  jurisdiction  in  partition  is  en- 
larged so  that  any  and  every  proper  relief  may  be  given  by  the  decree 
of  the  court. 

§287,  "i- Arkansas. — Const.  1868,  art.  VII.,  §1:  A  supreme  court  and 
circuit  courts  are  created.  §  4 :  "The  supreme  court  shall  have  general 
supervision  and  control  over  all  inferior  courts  of  law  and  equity."  §  5 : 
"The  inferior  courts  of  the  state  as  now  constituted  by  law  shall  remain 
with  the  same  jurisdiction  as  they  now  possess,"  subject  to  the  power  of 
the  legislature  to  alter.  Dig.  of  Stats,  1874,  §  1182  :«•  Circuit  courts  have 
original  jurisdiction  in  all  civil  actions.  Dig.  1874,  §  1183  :^  "They  shall 
have  exclusive  original  jurisdiction  in  each  county  in  which  they  may  be 
held,  except  in  the  county  of  Pulaski,  as  courts  of  equity,  in  all  eases 
where  adequate  relief  cannot  be  had  by  the  ordinary  course  of  proceed- 
ings at  law."  Dig.  1874,  §  §  1208,  1209  ;*  A  separate  chancery  court  is 
established  in  the  county  of  Pulaski,  which  has  jurisdiction  of  all  equity 
cases  arising  in  that  county.  Dig.  1874,  p.  798,  §  4450  :•*  All  fomis  of  ac- 
tion are  abolished.  Dig.  1874,  §  4451 :®  There  shall  be  one  form  of  action 
for  the  maintenance  of  all  private  rights  and  the  granting  of  all  private 
remedies,  called  the  civil  action.  Dig.  1874,  §4453:'  The  proceedings  in 
civil  actions  may  be  either  at  law  or  in  equity.  Dig.  1874,  §  4454 :«  The 
civil  action  "mai/  be  by  equitable  proceedings  in  all  cases  where  courts  of 
equity,  before  the  adoption  of  this  statute,  had  jurisdiction,  and  must  be 

§287,      (a)      Arkansas  — Big.     of  §  287,  (d)  Dig.  18S4,  §  4914. 

Stats.  1884,  §1357.  §287,  (e)   Dig.  1884,  §4915. 

§287,   (b)   Dig.   1884,   §1358.  §287,  («)  Dig.  1884,  §4917. 

§287,  (c)  Dig.  1884,  §§  1380,  1381.  §287,  (s)  Dig.  1884,  §4918. 


§  288  EQUITY   JURISPRUDENCE.  548 

§  288.  Conclusions. — Although  it  is  apparent  from  the 
foregoing  summary  that  there  is  a  very  general  agreement 
with  respect  to  the  amount  of  equity  jurisdiction  conferred 
upon  the  courts  by  this  fundamental  legislation  of  the  vari- 

in  all  cases  where  such  jurisdiction  was  exclusive."  This  provision  is 
substantially  the  same  as  the  corresponding  one  in  Iowa,  Kentucky,  and 
Oregon. 

h 

Connecticut. — In  addition  to  the  citations  given  ante,  in  not  describing 
the  second  class,  the  recent  Practice  Act  of  1879  (Pub.  Acts  1879,  p.  432 )» 
contains  the  following  provisions :  §  1 :  "There  shall  be  hereafter  but  one 
form  of  civil  action."  §  6 :  "All  courts  which  are  vested  with  jurisdiction 
both  at  law  and  in  equity  may  hereafter,  to  the  full  extent  of  their  re- 
spective jurisdictions,  administer  legal  and  equitable  rights,  and  apply  legal 
and  equitable  remedies,  in  favor  of  either  party,  in  one  and  the  same  suit; 
so  that  legal  and  equitable  rights  of  the  parties  may  be  enforced  and  pro- 
tected in  one  action ;  provided,  that  wherever  there  is  any  variance  between 
the  rules  of  equity  and  the  rules  of  the  common  law  in  reference  to  the 
same  matter,  the  rules  of  equity  shall  prevail." 

The  other  states  included  in  this  fourth  class  because  they  have  also 
adopted  the  reformed  system  of  procedure  are  described  ante,  in  notes  to 
the  first  and  second  classes. 

Indiana. — Const.,  art.  VII.,  §  8 :  "Circuit  courts  shall  have  such  civil  and 
criminal  jurisdiction  as  may  be  prescribed  by  law."  §  20:  Commissioners 
must  be  appointed  to  simplify  the  practice.  "They  shall  provide  for 
abolishing  the  forms  of  actions  at  law  now  in  use,  and  that  justice  shall 
be  administered  in  a  uniform  mode  of  pleading,  without  distinction  be- 
tween law  and  equity."  Gavin  and  Hord's  Ind.  Stats.,  vol.  2,  p.  7,  chap. 
14:  "Circuit  courts  shall  have  jurisdiction  of  all  kinds  of  civil  actions." 
"Such  courts  shall  have  power  to  make  all  proper  judgments,  sentences, 
decrees,  orders,  and  injunctions,  and  to  issue  all  processes,  and  to  do  such 
other  acts  as  may  be  proper  to  carry  into  effect  the  same,  in  conformity 
with  the  constitution  and  laws  of  this  state."J 

§  287,    (1»)    Colorado. — Const.,    art.  tion    for   the   enforcement   or   protec- 

VI    §11:   "The  district  courts  shall  tion  of  private  rights,  and  the  redress 

have     original     jurisdiction     of     all  or     prevention     of     private     wrongs, 

causes,  both   at  law   and   in   equity."  which  shall  be  the  same  at  law  and 

Code  Proc,  §  1 :   "The  distinction  be-  in  equity,  and  which  shall  be  denomi- 

tween    actions    at    law    and    suits    in  nated  a  civil  action." 
equity,  and  the  distinct  forma  of  ac-  §  287,  (i)  Connecticut. — Gen.  Stats, 

tion,    and    suits    heretofore    existing  1888,  §§  872,  877. 

are   abolished,   and   there   shall   be   in  §287,     (J)     /ndmna.— Eev.     Stats, 

this   state  but   one   form   of  civil   ac-  1888,    §1314;     Stats.    1881,    p.    102: 


549  ABSTRACT    OF    LEGISLATIVE    PROVISIONS.  §  288 

ous  states,  since  the  whole  power  belonging  to  a  court  of 
chancery  seems  to  be  given  either  expressly  or  impliedly  in 
all  the  commonwealths  with  a  few  exceptions,  yet  practi- 
cally such  a  complete  uniformity  by  no  means  exists.     The 

Kansas.— Const.,  art.  III.,  §6:  "District  courts  shall  have  such  juris- 
diction as  may  be  provided  by  law;"  that  of  the  supreme  court  is  entirely 
appellate.  Gen.  Stats.  18G8,  p.  304,  chap.  28,  §  1 :  District  courts  "shall 
have  a  general  original  jurisdiction  of  all  matters,  civil  and  criminal,  not 
.otherwise  provided  by  law." 

Minnesota. — Stats,  at  Large  of  1873,  p.  723,  §  17:  "District  courts  shall 
have  original  jurisdiction  of  all  civil  actions."  §  18 :  "The  district  courts 
have  original  jurisdiction  in  equity,  and  all  suits  or  proceedings  instituted 
for  equitable  relief  are  to  be  commenced,  prosecuted,  and  conducted  to  a 
final  decision  and  judgment  by  the  like  process,  pleadings,  trial,  and  pro- 
ceedings as  in  civil  actions,  and  shall  be  called  civil  actions."  Stats.  1SG6, 
chap.  64,  tit.  I. 

Missouri. — Const.,  art.  VI.,  §  13 :  Circuit  Courts  "shall  have  exclusive 
original  jurisdiction  in  all  civil  cases  which  shall  not  be  cognizable  before 
justices  of  the  peace."  Wagner's  Stats.  1870,  p.  431,  §  2:  "Circuit  courts 
shall  have  .  .  .  exclusive  original  jurisdiction  in  all  civil  cases  which  shall 
not  be  cognizable  before  county  courts  and  justices  of  the  peace." 

k,  1. 

Ohio. — Const.,  art.  XIV.,  §  3 :  Courts  of  common  pleas  are  the  tribunals 
of  original  general  jurisdiction  throughout  the  state;  and  (§  4)  they  have 
"such  jurisdiction  as  shall  be  conferred  by  law."  There  is  also  a  superior 
court  of  the  city  of  Cincinnati  possessing  the  same  jurisdiction  within  cer- 
tain territorial  limits.  Swan  and  Critchfield's  Rev.  Stats.  1870,  p.  386, 
chap.  32,  §  33  :"*  Courts  of  common  pleas  "shall  have  original  jurisdiction 
in  all  civil  cases  where  the  sum  or  matter  in  dispute  exceeds  the  exclusive 

"Circuit  courts  shall  have  original  ex-  shall  be  but  one  form  of  civil  action, 
elusive  jurisdiction  in  all  cases  at  law  and  law  and  equity  may  be  adminis- 
and  in  equity  whatsoever,  .  .  .  ex-  tered  in  the  same  action." 
cept  where  exclusive  or  concurrent  §  287,  (1)  North  Dakota. — Const., 
jurisdiction  is  or  may  be  conferred  §  103 :  "The  district  court  shall  have 
by  law  upon  justices  of  the  peace."  original  jurisdiction,  excerpt  as  other- 
Section  287  of  the  text  is  cited  in  wise  provided  in  this  constitution,  of 
Blair  v.  Smith,  114  Ind.  114,  15  N.  E.  all  causes,  both  at  law  and  equity." 
817,  By  section  111,  provision  is  made  for 
§  287,  (k)  Montana. — Const.,  art.  conferring  general  jurisdiction  on 
VIII.,  §  11:  "The  district  courts  shall  certain  county  (probate)  courts, 
have  original  jurisdiction  in  all  cases  §287,  (n»)  Ohio. — Smith  &  Bene- 
at  law  and  in  equity."     §28:  "There  dicfs  Eev.  Stats.  1890,_  p.  124,  §456. 


§  288  EQUITY    JURISPRUDENCE.  550 

real  condition  of  the  jurisdiction  as  it  is  administered  in 
the  different  groups  of  states  requires  a  brief  statement  of 
the  judicial  interpretation  which  has  been  given  to  the  con- 
stitutional and  statutory  grants  of  power,  either  taken  sep- 
arately or  arranged  according  to  their  respective  types. 
This  judicial  intei'pretation  is  described  in  the  following 
section. 

original  jurisdiction  of  justices  of  the  peace."     A  like  power  is  given  to 

the  superior  court  of  Cincinnati  within  its  territorial  limits. 

South   Carolina. — The  constitution  of  1868  provides  for  an  appellate 

court  and  lower  courts  of  original  jurisdiction;  and  that  the  distinction 

between  suits  in  equity  and  actions  at  law  shall  be  abolished.    Prior  to  this 

revision  of  the  constitution,   law  and  equity  had  been   administered   by 

distinct  tribunals.     In  1870  a  code  of  procedure  was  adopted  similar  in 

all  respects  to  the  like  code  which  had  prevailed  in  New  York  since  1849, 

by  which  the  legal  and  equitable  jurisdictions  are  combined  in  the  same 

proceedings. 
n 

In  two  other  states  of  this  class  all  distinction  between  legal  and  equi- 
table actions  has  been  abandoned,  but  the  peculiar  methods  of  the  refonned 
procedure  have  not  been  adopted.  The  law  of  Louisiana,  both  with  re- 
spect to  substantive  or  primary  I'ights  and  to  remedies,  is  based  upon  the 
"civil  law"  as  that  had  been  modified  and  reconstructed  by  the  French 
codes.  The  substantive  law  of  Texas  has  also  a  large  element  of  the  "civil 
law,"  but  recognizes  the  common  law  and  the  principles  of  equity.  Its 
remedial  procedure  provides  one  form  of  action  for  all  kinds  of  relief,  but 
does  not  copy  either  the  common-law  or  the  chancery  methods.  In  each 
of  these  states  many  of  the  principles,  doctrines,  and  remedies  of  equity 
constitute  a  part  of  the  jurisprudence,  for  no  enlightened  system  could 
be  without  them. 

Texas. — Const.  1869,  art.  V.,  §  3 :  The  supreme  court  has  only  an  appel- 
late jurisdiction.  §7:  "District  courts  have  original  jurisdiction  of  all 
suits,  without  regard  to  any  distinction  between  law  and  equity,  when  the 
value  of  the  matter  in  controversy  is  one  hundred  dollars  or  more." 

o,  p. 

§287,    (n)    South  Dakota. — Const.,  art.    IV.,    §6:    "The    .superior    court 

art.    v.,     §  14:     "The    circuit     courts  shall  have  original  jurisdiction  in  all 

shall  have  original  jurisdiction  of  all  cases  in  equity,"  and  in  many  cases 

actions  and  causes,  both  at  law   and  at  law. 

in  equity."     General  jurisdiction  may  §  287,    (p)    Wyoming. — Const.,   art. 

be    conferred    by    statute    on    county  V.,    §  10:    "The    district    court    shall 

(probate)    courts.  have      original      jurisdiction      of      all 

§  287,      (o)      Washington, —  Const.^  causes,  both  at  law  and  in  equity." 


551  JUDICIAL   INTERPRETATION    OF    JURISDICTION.  §  289 


SECTION  11. 

THE  JURISDICTION  AS  ESTABLISHED  BY  JUDICIAL  INTER- 
PRETATION. 

ANALYSIS. 

§  289.     The  questions  to  be  examined  stated. 

§  290.     Diversity  of  statutory  interpretation  in  different  statei. 
S§  291-298.     United  States  courts,  equity  jurisdiction  of. 

§292.     First  principle:   Uniformity  of  jurisdiction. 

§293.     Second  principle:   Identity  of  jurisdiction. 

§294.     Thiird  principle:   Extent  of  the  jurisdiction. 

§295.     Fourth  principle:   Inadequacy  of  legal  remedies. 
§§296,297.     Illustrations. 

§297.     Ditto;   effect  of  state  laws  on  the  subject-matter  of  the  juris- 
diction. 

§  298.     Territorial  limitations  on  the  jurisdiction. 
§§  299-341.     States  in  which  only  a  special  and  partial  jurisdiction  has  been 

given  by  statute. 
§§  299-310.     New  Hampshire. 
§§  311-321.     Massachusetts. 
§§  322-337.     Maine. 
§§  338-341.     Pennsylvania. 
§§  342-352.     The  other  states  in  which  a  general  jurisdiction  has  been  given. 

§  342.     What  states  are  included  in  this  division. 

§  343.     Questions  to  be  examined  stated. 

§  344.     Interpretation   of   statute   limiting  the  jurisdiction   to   cases   for 
which  the  legal  remedy  is  inadequate. 

§345.     General  extent  of  the  statutory  jurisdiction;  the  states  arranged 
in  the  foot-note. 
81  346-352.     How  far  this  equity  jurisdiction  extends  to  the  administration 
of  decedents'  estates. 

§  347.     Probate  courts,  jurisdiction  and  powers  of. 

§348.     Class  first:  The  ordinary  equity  jurisdiction  over  administrations 
expressly  abolished. 

§  349.     Class  second :   Such  jurisdiction  practically  abrogated  or  obsolete. 

§350.     Class    third:    Such   jurisdiction    still    existing    and   actually    con- 
current. 
§§351,352.     Special  subjects  of  equity  jurisdiction  connected  with  or  grow- 
ing out  of  administrations. 
§§  353-358.     States  which  have  adopted  the  reformed  system  of  procedure. 

§  354.     General  effect  of  this  procedure  on  the  equity  jurisdiction, 
§§  355-358.     Its  particular  effects  upon  equity. 

§  356.     On  certain  equitable  interests  and  rights. 

§  357.     On  certain  equitable  remedies. 

§  358.     On  the  doctrine  as  to  inadequacy  of  legal  remedies. 

§  289.     Questions  Stated. — Having  collected  the  legisla- 
tive grants  of  equitable  jurisdiction,  I  shall  now,  for  the 


§  290  EQUITY    JURISPRUDENCE.  552 

purpose  of  arriving  at  a  practical  result,  describe  in  a  very 
brief  and  condensed  manner  the  judicial  interpretation 
which  has  been  given  to  them.  It  will  not  be  necessary  to 
examine  each  of  them  separately ;  they  may,  with  a  very  few 
exceptions,  be  conveniently  grouped  and  discussed  accord- 
ing to  three  or  four  prevailing  types.  It  was  remarked  at 
the  close  of  the  last  section  that  while  there  appeared  to  be 
a  very  general  agreement  on  the  amount  of  equitable  ju- 
risdiction conferred  by  the  constitutions  and  statutes,  yet 
practically  such  a  complete  uniformity  does  not  exist.  This 
actual  condition  results  from  several  causes. 

§  290.  Different  Theories  of  Interpretation. — In  the  first 
place,  a  marked  diversity  will  be  found  in  the  fundamental 
motives  and  theory  of  the  judicial  interpretation  put  upon 
these  legislative  provisions  by  the  courts  of  different  states. 
In  some  of  them  a  strong  tendency  has  been  shown  to  lay 
much  stress  upon  the  limiting  clauses  contained  in  the  stat- 
utory grants  of  authority,  and  to  give  a  broad  meaning  and 
controlling  operation  to  such  clauses  as  those  which  restrict 
the  equitable  jurisdiction  to  cases  ''where  there  is  no  plain, 
adequate,  and  complete  remedy  at  law."  In  others,  the 
tendency  has  been  towards  a  more  liberal  construction ;  to 
hold  that  these  and  similar  clauses  are  simply  declaratory 
of  a  familiar  principle  embodied  in  the  general  theory  of 
equity  jurisdiction,  and  add  no  restriction  whatever  to  the 
extent  of  jurisdiction  which  would  have  been  conferred 
without  their  presence;  in  short,  that  they  merely  state  a 
limitation  which  is  necessarily  involved  in  the  very  concep- 
tion of  the  equitable  jurisdiction.  In  the  second  place,  the 
apparent  uniformity  in  the  jurisdiction  created  by  these 
general  provisions  has  been  greatly  interfered  with,  and 
even  destroyed,  by  the  different  systems  of  legislation 
adopted  by  various  states  with  reference  to  many  important 
branches  of  the  municipal  law,  which  originally,  and  prior 
to  any  statutory  interposition,  formed  a  part  of  the  equity 
jurisprudence.  In  man}^,  and  perhaps  most,  of  the  states, 
subjects  which  fell  within  the  domain  of  equity,  and  which 


553  JUDICIAL   INTERPRETATION    OF    JURISDICTION.  §  291 

were  governed  by  equitable  doctrines  as  administered  by 
the  court  of  chancery,  have  been  wholly  subjected  to  a  statu- 
tory regulation,  and  committed  to  special  tribunals,  such  as 
the  courts  of  probate,  so  that  the  interference  of  equity  is 
no  longer  necessary^  even  if  it  is  possible.  Other  depart- 
ments of  the  municipal  law — as,  for  example,  trusts  and 
married  women's  property — have  been  modified  by  legis- 
lation, so  that  the  material  upon  which  the  equity  jurisdic- 
tion acted  has  been  altered,  limited,  or  perhaps  enlarged. 
Some  of  these  changes  have  already  been  described.  This 
same  method  of  modifying  the  equitable  jurisdiction  has 
even  been  carried  out  to  a  much  greater  extent.  In  several 
of  the  states,  the  municipal  law  has  been,  either  wholly  or 
in  large  part,  reduced  to  a  codified  form,  and  the  doctrines 
and  rules,  both  of  law  and  equity,  have  thus  been  combined 
into  one  statutory  system;  or  at  least,  the  division  walls 
between  them  have,  to  a  considerable  extent,  been  broken 
down.  From  these  facts,  the  conclusion  is  evident,  that  in 
order  to  ascertain  the  actual  jurisdiction  of  equity  as  it  now 
exists  in  the  different  states,  an  examination  is  requisite 
both  of  the  judicial  decisions  interpreting  its  fundamental 
grants  of  power,  and  of  the  statutes  which  have  modified 
the  subject-matter  upon  which  it  acts.  In  the  brief  ex- 
amination of  the  judicial  construction  which  follows,  I  shall 
consider  first  and  separately  the  United  States,  and  shall 
then  take  up  the  several  states,  arranged  in  a  few  groups. 

§  291.  The  United  States. — The  constitution  of  the  United 
States  recognizes  equity  as  a  part  of  the  national  juris- 
prudence inherited  from  England  at  the  time  of  the  Revolu- 
tion, and  the  equitable  jurisdiction  as  a  part  of  the  judicial 
powers  conferred  upon  the  national  tribunals.  The  stat- 
utes of  Congress  have,  as  is  seen  by  the  extracts  given  in 
the  preceding  section,  acted  upon  this  constitutional  provi- 
sion ;  and  have,  in  broad  terms,  intrusted  the  exercise  of  this 
jurisdiction  to  the  courts  of  original  jurisdiction,  which  are 
established  throughout  the  states,  and  to  the  supreme  court 
created  by  the  constitution  as  the -appellate  tribunal  of  last 


§  292  EQUITY    JURISPRUDENCE.  554 

resort.  In  giving  a  judicial  interpretation  to  these  consti- 
tutional and  statutory  enactments,  the  national  courts  have, 
by  numerous  decisions,  settled  the  following  principles, 
which  may  justly  be  regarded  as  the  foundations  of  the 
equitable  powers  possessed  by  the  national  judiciary. 

§  292.  First  Principle:  Uniformity. — The  equitable  juris- 
diction of  the  national  courts,  being  derived  wholly  from 
the  United  States  constitution  and  statutes,  exists  uni- 
formly and  to  its  full  extent  throughout  the  entire  Union,  in- 
dependent of  and  unaffected  by  any  state  laws,  or  any 
peculiar  system  of  jurisprudence  and  legislation  adopted 
by  individual  states.  It  is  the  same  in  Louisiana  with  its 
civil-law  code,  in  California  with  its  code  combining  legal 
and  equitable  doctrines,  and  in  New  Jersey,  which  has  pre- 
served the  ancient  English  system  of  common  law  and 
equity  almost  unaffected  by  modem  legal  reform.  What- 
ever may  be  the  municipal  law  of  any  particular  state, 
either  in  its  substance  or  its  form,  the  United  States  courts 
in  that  state  preserve  their  equitable  jurisdiction,  and  ad- 
minister the  equitable  jurisprudence  unchanged  by  such 
local  legislation.  It  follows,  as  a  necessary  consequence 
from  this  principle,  that  the  reformed  system  of  procedure 
now  prevailing  in  many  states  and  territories,  whereby  all 
distinction  between  suits  in  equity  and  at  law  is  abolished, 
and  all  rights  are  maintained  and  all  reliefs  procured  by 
means  of  one  judicial  proceeding,  called  the  "civil  action," 
has  not  in  the  least  affected  either  the  doctrines  of  equity 
jurisprudence  administered,  nor  the  extent  and  modes  of 
equity  jurisdiction  exercised,  by  the  national  courts  situ- 
ated and  acting  within  the  same  commonwealth.^  » 

§  292,  1  This  result  of  the  principle  stated  in  the  text  is  recognized  and 
followed  by  the  most  recent  legislation  of  Congi'ess  upon  the  subject. 
U.  S.  Rev.  Stats.,  §  914  (Laws  of  1872,  chap.  255,  §  5,  17  Stats,  at  Large, 
p.  197),  provides  that  practice,  pleading,  forms,  and  modes  of  proceeding 

§292,  (a)  The  text  is  cited  in  Ne-  port  of  the  principle  of  this  and  the 
vada-California  Power  Co.  v.  Hamil-  next  following  paragraph,  see  Bojle 
ton,   235   Fed.   317.     In   further  .sup-       v.   Zacharie  &  Turner,   6   Pet.   648,   8 


555  JUDICIAL   INTERPRETATION    OF   JURISDICTION.  §  293 

§  293.  Second  Principle:  Identity. — The  second  prin- 
ciple is  a  corollary  of  the  first.  The  equitable  'jurisdiction 
is  the  same  with  respect  to  its  nature  and  extent  in  all  the 
states,  and  is  wholly  unmodified  and  unabridged  by  state 

in  civil  causes,  other  than  in  equity  or  in  admiralty,  shall  conform  as  near 
as  may  be  to  the  forms,  pleading,  etc.,  existing  at  the  time  in  like  causes 
in  the  courts  of  record  of  the  state  within  which  the  United  States  court 
is  held.  This  provision  preserves  the  equity  methods  unchanged  by  the 
state  laws.  The  following  cases  maintain  the  doctrine  formulated  in  the 
text:  Bodley  v.  Taylor,  5  Cranch,  191,  221,  222;  Livingston  v.  Story,  9 
Pet.  632  (equity  jurisdiction  in  Louisiana) ;  Clark  v.  Smith,  13  Pet.  195, 
203;  Watkins  v.  Holman,  16  Pet.  25,  26,  58,  59;  Bennett  v.  Butterworth, 
11  How.  669,  674,  675;  Stinson  v.  Dousman,  20  How.  461,  464;  Greer  v. 
Mezes,  24  How.  268,  277,  per  Grier,  J.;  Lessee  of  Smith  v.  McCann,  24 
How.  398,  403;  Barber  v.  Barber,  21  How.  582,  591,  592;  Noonan  v.  Lee, 
2  Black,  499,  509;  Thompson  v.  Railroad  Co.,  6  Wall.  134,  137;  Dunphy 
V.  ICleinsmith,  11  Wall.  610,  614;  Walker  v.  Dreville,  12  Wall.  440  (in 
Louisiana) ;  Basey  v.  Gallagher,  20  Wall.  670,  679,  1  Mont.  Ter.  457;  Case 
of  Broderick's  Will,  21  Wall.  503;  Shuford  v.  Cain,  1  Abb.  (U.  S.  C.  C.  A.) 
302,  305;  Loring  v.  Downer,  1  McAll.  360,  362;  Mezes  v.  Greer,  1  McAU. 
401,  402;  Byrd  v.  Badger,  1  McAll.  443,  444;  Lorman  v.  Clarke,  2  McLean, 

L,  Ed.  532,  by  Story,  J.;   Russell  v.  632;  Gaines  v.  Relf,   15  Pet.  9;   Mc- 

Southard,    12    How.    148,    13   L.    Ed.  Collum  v.  Eager,  2  How.  61;  Bein  v. 

931;  Neves  v.  Scott,  13  How.  270,  14  Heath,  12  How.  168;  Walker  v.  Dre- 

L.   Ed.   140;   Pennsylvania  v.  Wheel-  ville,  12  Wall.  440;   Eidings  v.  John- 

ing  Bridge  Co.,  18  How.  460,  15  L.  Ed.  son,   128   U.  S.   212,   217,  9   Sup.   Ct. 

449;  Hipp  v.  Babin,  19  How.  271,  ;-^  72,    74;    New    Orleans    v.    Louisiana 

L.  Ed.  633;  Bronson  v.  Schulten,  104  'i^onstruction  Co.,  129  U.  S.  46,  47,  9 

U.  S.  410,  26  L.  Ed.  797;  In  re  Saw-  Sup.   Ct.  223,   224;   Fleitas   v.   Rich- 

yer,   124   U.   S.   200,   210,  8   Sup.   Ct.  ardson,   147  U.  S.   538,  545,  13   Sup. 

487;    Willard    v.    Wood,    135    U.    S.  Ct.  429,  432. 

309,  10  Sup.  Ct.  831;  Dodge  v.  Tul-  Effect  of  the  Codes.— The  federal 
leys,  144  U.  S.  451,  12  Sup.  Ct.  728;  courts  refuse  to  ccnform  to  those 
California  v.  Southern  Pae  Co.,  157  provisions  of  the  codt*  which  per- 
il. S.  229,  15  Sup.  Ct.  591;  Nalle  v.  mit  the  uniting  of  legal  ind  equi- 
Young,  160  U.  S.  624,  16  Sup.  Ct.  table  causes  of  action  in  the  same 
420;  Fitts  v.  McGhee,  172  U.  S.  516,  suit:  Hurt  v.  Hollingsworth,  100 
531,  19  Sup.  Ct.  269,  275;  Fletcher  V.  V.  S.  100,  103,  25  L.  Ed.  :>71 
Morey,  2  Story,  567,  Fed.  Cas.  No.  (Texas);  La  Mothe,  etc.,  Co.  ,>  . 
4,864;  Alger  v.  Anderson,  92  Fed.  Tube,  etc.,  Co.,  15  Blatchf.  436,  Fed. 
696,  700,  710.  Cas.  No.  8,033;  Kenton,  etc.,  Co.  v. 
As  to  the  equity  jurisdiction  of  McAlpin,  5  Fed.  737,  740;  Gudger  v. 
the  United  States  courts  in  Louisi-  Western,  etc.,  R.  Co.,  21  Fed.  81,  84| 
ana,  see  Livingston  v.  Story,  9  Pet.  Phelps   v.    Elliott,    23    Blatchf.    473, 


§  293  EQUITY   JURISPRUDENCE.  556 

legislation  wliicli  deals  with  subjects  belonging  to  tbe  gen- 
eral system  of  equity  jurisprudence.  State  laws  subtract- 
ing from  or  limiting  the  scope  of  equity  do  not  act  upon 
the  equitable  powers  and  jurisdiction  held  by  the  national 

668 ;  Putnam  v.  City  of  New  Albany,  4  Biss.  365.  The  principle  was  con- 
cisely and  clearly  stated  in  Shuford  v.  Cain,  1  Abb.  (U.  S.  C.  C.  A.)  302, 
305,  by  Erskine,  J. :  "In  the  courts  of  many  states — Georgia,  for  example — 
law  and  equity  are  in  a  greater  or  less  degree  blended.  This  commingling  is 
unknown  in  the  national  courts.  ...  As  courts  of  equity,  they  entertain 
suits  in  which  the  relief  is  sought  according  to  the  principles,  and  in  gen- 
eral the  practice,  of  the  equity  jurisdiction  as  established  in  English  juris- 
prudence ;"  citing  Parsons  v.  Bedford,  3  Pet.  447 ;  Robinson  v.  Campbell,  3 
Wheat.  212;  United  States  v.  Rowland,  4  Wheat.  108;  Pennsylvania  v. 
Wheeling  Bridge  Co.,  13  How.  519.  In  Thompson  v.  Railroad  Co.,  6 
Wall.  134,  137,  the  supreme  court  distinctly  held  that  the  state  codes  abol- 
ishing the  distinction  between  legal  and  equitable  proceedings,  and  estab- 
lishing one  civil  action,  etc.,  do  not  affect  the  jurisdiction  or  methods  of 
the  United  States  courts  in  such  states.  In  Putnam  v.  New  Albany,  4 
Biss.  365,  it  was  held  that  the  Indiana  code  of  procedure  giving  certain 
equitable  remedies  in  courts  of  law  does  not  oust  a  court  of  equity  of  its 
former  jurisdiction  to  give  the  same  or  similar  remedies  by  suit. 

26  Fed.  881,  883;  Cherokee  Nation  315,  30  Fed.  547,  561;  Kircher  v. 
V.  Southern  Kansas  Ey.,  33  Fed.  900,  Murray,  54  Fed.  617,  626,  60  Fed. 
914;  Union  Pac.  R.  Co.  v.  United  52,  23  U.  S.  App.  214  (trespass  to 
States,  59  Fed.  813,  19  U.  S.  App.  try  title  cannot  be  sustained  on  the 
531,  8  C.  C.  A.  282;  Blalock  v.  Equi-  wife's  equitable  interest  in  the  com- 
table  L.  Assur.  Soc,  75  Fed.  43,  21  munity  property);  Stone  v.  Perkins, 
C.  C.  A.  208  (in  action  at  law  for  85  Fed.  616,  620  (plaintiff  in  eject- 
fraud  and  deceit  in  obtaining  the  ment  can  get  no  support  on  ground 
surrender  of  an  insurance  policy,  a  of  estoppel);  Beatty  v.  Wilson,  161 
prayer  for  equitable  relief  should  be  Fed.  453;  or  which  permit  an  equi- 
treated  as  surplusage);  In  re  Foley,  table  defense  to  be  set  up  in  a  legal 
76  Fed.  396;  Coit  v.  Sullivan,  etc.,  action:  Jones  v.  McMasters,  20  How. 
Co.,  84  Fed.  724,  725;  Berkey  v.  Cor-  8,  22,  15  L.  Ed.  805  (Texas);  Greer 
nell,  90  Fed.  711,  717;  First  Nat.  v.  Mezes,  24  How.  268,  277,  16 
Bank  v.  Prager,  91  Fed.  689,  692,  63  L.  Ed.  661;  Singleton  v.  Touchard, 
U.  S.  App.  709;  or  which  permit  1  Black,  345,  17  L.  Ed.  50;  Burnes 
legal  relief,  such  as  ejectment,  to  be  v.  Scott,  117  U.  S.  582,  587,  6  Sup. 
based  upon  an  equitable  title:  Fenn  Ct.  863  (reviewing  cases);  Northern 
V.  Holme,  21  How.  484,  16  L.  Ed.  Pac.  R.  R.  v.  Paine,  119  U.  S.  561, 
199;  Hooper  v.  Scheimer,  23  How.  563,  7  Sup.  Ct.  323;  Butler  v.  Young, 
235,  16  L.  Ed.  452;  Sheirburn  v.  De  1  Flipp.  277,  Fed.  Cas.  No.  2,245; 
Ccrdova,  24  How.  423,  16  L.  Ed.  Montijo  v.  Owen,  14  Blatchf.  325, 
741;    Bouldin    v.    Phelps,    12    Sawy.  Fed.   Cas.   No.   9,722;   Lerma  v.  Ste- 


557 


JUDICIAL   INTERPRETATION    OF    JURISDICTION. 


§293 


courts.  But  while  state  legislation  cannot  thus  influence 
the  jurisdiction  negatively  so  as  to  narrow  it,  it  may  oper- 
ate affirmatively  so  as,  at  least  indirectly,  to  enlarge  it. 
The  actual  jurisdiction  of  the  United  States  courts  in  large 
measure  depends  upon  the  personalty  of  the  litigant  par- 


venson,  40  Fed.  356,  359;  Boggs  v. 
Wann,  58  Fed.  681;  Wilcox,  etc.,  Co. 
V.  Phoenix  Ins.  Co.,  61  Fed.  199; 
Davis  V.  Davis,  72  Fed.  81,  84,  30 
U.  S.  App.  723,  18  C.  C.  A.  438; 
Owens   V.   Ileidbrcder,   78   Fed.   837, 

24  C.  C.  A.  362  (Texas:  trespass  to 
try  title);  Daniel  v.  Felt,  100  Fed. 
727;  Mulqueen  v.  Schlichter  Jute 
Cordage  Co.,  108  Fed.  931;  Highland 
Boy  Gold  Min.  Co.  v.  Strickley,  116 
Fed.  852;  McManus  v.  Chollar  (C. 
C.  A.),  128  Fed.  902;  Tegarden  v. 
La  Marchel,  129  Fed.  487.  Thus,  a 
federal  court  has  no  power  to  per- 
mit an  equitable  set-off  or  counter- 
claim in  an  action  at  law:  Scott  v. 
Armstrong,  146  U.  S.  499,  512,  13 
Sup.  Ct.  148,  152;   Snyder  v.  Pharo, 

25  Fed.  398,  399,  400;  Jewett  Car 
Co.  V.  Kirkpatrick  Constr.  Co.,  107 
Fed.  622;  nor  an  equitable  plea,  in 
an  action  of  ejectment,  that  the  de- 
fendant had  in  good  faith  and  with 
the  plaintiff's  knowledge  put  valu- 
able improvements  on  the  land;  Doe 
V.  Eoe,  31  Fed.  100;  nor  a  defense 
of  fraud  or  usury  in  an  action  on  a 
judgment:  Buller  v.  Sidell,  43  Fed. 
116;  Turner  v.  Hamilton,  88  Fed. 
467,  473.  In  an  action  on  contract, 
persons  claiming  labor  liens  cannot 
intervene  to  have  them  enforced; 
Gravenburg  v.  Laws,  100  Fed.  1,  40 
C.  C.  A.  240.  Where,  in  an  action 
for  damages,  a  release  was  set  up, 
the  plaintiff  cannot,  in  the  same  ac- 
tion, procure  the  release  to  be  set 
aside  on  the  ground  of  fraud  or  un- 
due influence:  Johnson  v.  Merry 
Mount  Granite  Co.,  53  Fed.  569;  Hill 


V.  Northern  Pac.  R.  Co.,  104  Fed. 
754,  113  Fed.  914,  51  C.  C.  A.  544; 
also.  Pacific  Mutual  Life  Ins.  Co.  v, 
Webb,  157  Fed.  155,  13  Ann.  Cas. 
752,  84  C.  C.  A.  603. 

In  Bennett  v.  Butterworth,  11 
How.  669,  674,  675,  13  L.  Ed.  859, 
Taney,  C.  J.,  speaks  thus  of  the  ef- 
fect of  state  statutes  abolishing  the 
distinction  between  legal  and  equi- 
table actions:  "Whatever  may  be 
the  laws  of  Texas  in  this  respect, 
they  do  not  govern  the  proceedings 
in  the  courts  of  the  United  States. 
And  although  the  forms  of  proceed- 
ings and  practice  in  the  state  courts 
have  been  adopted  in  the  district 
court,  yet  the  adoption  of  the  state 
practice  must  not  be  understood  as 
confounding  the  principles  of  law 
and  equity,  nor  as  authorizing  legal 
and  equitable  claims  to  be  blended 
together  in  one  suit.  The  constitu- 
tion of  the  United  States  in  creat- 
ing and  defining  the  judicial  power 
of  the  general  government  estab- 
lishes this  distinction  between  law 
and  equity;  and  a  party  who  claims 
a  legal  title  must  proceed  at  law, 
and  may  undoubtedly  proceed  ac- 
cording to  the  forms  of  practice  in 
such  cases  in  the  state  court.  But 
if  the  claim  is  an  equitable  one,  he 
must  proceed  according  to  rules 
which  this  court  has  prescribed  (un- 
der the  authority  of  the  Act  of  Aug. 
23,  1842)  regulating  proceedings  in 
equity  in  the  courts  of  the  United 
States." 

The  provision  of  the  codes  requir- 
ing suits  to  be  in  the  name  of  the 


§  293  EQUITY    JURISPRUDENCE.  558 

ties, — their  state  citizenship, — and  extends  to  all  subjectr 
matters  belonging  to  such  tribunals.  The  primary  rights, 
interests,  or  estates  of  the  litigant  parties,  which  are  dealt 
with  by  the  exercise  of  this  jurisdiction,  must  often,  there- 
fore, be  created  by  state  laws,  and  not  by  statutes  of  Con- 
gress. It  has  accordingly  been  repeatedly  held  that  while 
the  equitable  jurisdiction  cannot  be  narrowed  or  limited 
by  any  state  legislative  or  judicial  action,  on  the  other 
hand,  if  equitable  primary  rights,  interests,  or  estates 
have  been  enlarged,  or  if  entirely  new  equitable  primary 
rights  or  interests  have  been  created,  by  state  laws, 
such  enlarged  or  new  rights  will  necessarily  come  within 
the  equity  jurisdiction  of  the  national  courts,  and  may  be 
protected,  maintained,  and  enforced  in  appropriate  suits 
by  proper   remedies.  ^  *    A  very  striking  illustration   of 

§  293,  1  Pratt  v.  Northam,  5  Mason,  95,  105 ;  Lorman  v.  Clarke,  2  Mc- 
Lean, 568;  Livingston  v.  Van  Ingen,  1  Paine,  45;  Canal  Co.  v.  Gordon,  6 
Wall.  561,  568 ;  Barber  v.  Barber,  21  How.  582,  591,  592 ;  Case  of  Broder- 
ick's  Will,  21  Wall.  503 ;  Noonan  v.  Lee,  2  Black,  499,  509 ;  Livingston  v. 
Story,  9  Pet.  632;  Clark  v.  Smith,  13  Pet.  195,  203;  Putnam  v.  New 
Albany,  4  Biss.  365.  In  Pratt  v.  Northam,  5  Mason,  95,  Story,  J.,  thus 
stated  the  general  doctrine:  "It  has  been  often  decided  by  the  supreme 
court  that  the  equity  jurisdiction  of  the  courts  of  the  United  States  is 
not  limited  or  restrained  by  the  local  remedies  in  the  different  states; 
that  it  is  the  same  in  all  the  states,  and  is  the  same  which  is  exercised  in 
the  land  of  our  ancestors,  from  whose  jurisprudence  our  own  is  derived"; 
citing  Robinson  v.  Campbell,  3  Wheat.  212;  United  States  v.  Rowland,  4 
Wheat.  108,  115.  In  Lorman  v.  Clarke,  5  McLean,  568,  McLean,  J., 
decided  in  the  circuit  court  for  Michigan,  that  the  "United  States  courts 
derive  their  equity  as  well  as  their  common-law  jurisdiction  from  the  con- 
stitution and  laws  of  the  United  States.  In  states  where  there  is  no 
chancery  court,  the  equity  jurisdiction  of  the  United  States  courts  is  ihe 

"real  party  in  interest"  is  followed  Biss.  338,  Fed.  Cas.  No.  120;  Weed, 

on    the    law    side    of    the    federal  etc.,  Co.  v.  Wicks,  3  Dill.  265,  Fed. 

courts;     consequently     there    is     no  Cas.  No.  17,348;  Daniels  v.  Citizens' 

necessity  for  the  assignee  of  a  chose  Ins.   Co.,   10   Biss.    120,   5  Fed.  425, 

in  action  to  sue  in  equity;  Thomp-  429. 

son    V.    Central    Ohio   K.    K.    Co.,    6  §  293,  (a)  Jurisdiction  not  Abridged 

Wall.  134,  18  L.  Ed.  765;  Hay  ward  by  State  Legislation. 

v.   Andrews,   106   U.    S.   678,    1   Sup.  Injunction. —  The    jurisdiction,    on 

Ct.    544,    549;     Akerly    v.    Vilas,    3  the  ground  of  avoiding  a  multiplic- 


559 


JUDICIAL   INTERPRETATION    OF    JURISDICTION. 


§293 


this  principle  may  be  seen  in  tbe  power  of  the  United 

same  as  in  other  states.  A  state  cannot  enlarge  nor  restrict  the  jurisdic- 
tion of  the  United  States  courts.  But  the  primary  rights  of  parties  may 
be  governed  by  or  created  by  the  laws  of  a  state;  and  the  jurisdiction  of 
the  United  States  to  adjudicate  upon  those  rights,  and  the  modes  whether 
equitable  or  legal,  are  governed  by  United  States  laws."  In  Barber  v. 
Barber,  21  How.  582,  591,  592,  Wayne,  J.,  said:  "It  is  no  objection  to 
the  equity  jurisdiction  in  the  courts  of  the  United  States,  that  there  is  a 
remedy  under  the  local  law,  for  the  equity  jurisdiction  of  the  federal 
courts  is  the  same  in  all  the  states,  and  is  not  affected  by  the  existence  or 
nonexistence  of  an  equity  jurisdiction  in  the  state  tribunals.  -  It  is  the 
same  in  nature  and  extent  as  the  jurisdiction  of  England,  whence  it  is 
derived;"  citing  Livingston  v.  Story,  9  Pet.  632.  In  Case  of  Broderiek's 
Will,  21  Wall.  503,  the  supreme  court  held  that  "alterations  in  the  juris- 
diction of  state  courts  cannot  affect  the  equitable  jurisdiction  of  the  United 
States  courts,  so  long  as  the  equitable  rights  themselves  remain;  but  an 
enlargement  of  equitable  rights  may  be  administered  by  United  States 
courts  as  well  as  by  the  state  courts." 


ity  of  suits,  to    enjoin    the    enforce- 
ment of  a   state   statute    providing 
for  the  fixing  of  railroad  rates,  is 
unaffected  by  the  fact  that  the  stat- 
ute  provides  a  legal  remedy;  Smyth 
V.    Ames,    169    U.    S.    466,    516,    18 
Sup.    Ct.    418,    422.     The    right    to 
enjoin    illegal    taxation    upon    some 
recognized  equitable  ground,  such  as 
cloud  upon  title  to  real  estate,  is  not 
barred   by  the   existence   of   special 
statutory  remedy:  Gregg  v.  Sanford, 
65  Fed.  151,  157,  28  U.  S.  App.  313 
Third  Nat.  Bank  v.  Mylcn,  76  Fed 
385;  Brown  v.  French,  80  Fed.  166, 
169;    Taylor   v.   Louisville    &   N.    R. 
Co.,  88  Fed.  350,  359,  60  U.  S.  App 
185,  31  C.  C.  A.  537;  Bank  of  Ken 
tucky   V.    Stone,    88    Fed.    383,    391 
also.    Western    Union    Tel.    Co.    v 
Trapp,   186  Fed.    114,   108    C.   C.   A 
226;    Nevada    California    Power    Co 
v.  Hamilton,   235  Fed.  317   (statute 
provided  for  a  defense  as  to  the  ex- 
cess  in   a   suit   to   collect   the   tax) ; 
but  see  Union  Pae.  R.  Co.  v.  Board 
of      Com'rs,      222      Fed.      651,      138 


C.  C.  A.  175,  relying  on  Singer  Sew- 
ing Machine  Co.  v.  Benedict,  229 
U.  S.  481,  57  L.  Ed.  1288,  33  Sup.  Ct. 
942.  The  subject  is  examined  fur- 
ther in  Pom.  Eq.  Remedies,  Chapter 
on  Injunction  Against  Taxation. 
Jurisdiction  to  enjoin  trespass  is  not 
ousted  by  the  statutory  action  of 
forcible  entry  and  detainer:  Poke- 
gama  S.  P.  L.  Co.  v.  Klamath  R.  L. 
&  L  Co.,  96  Fed.  34,  55.  The  right 
to  an  injunction  in  the  federal 
courts  against  the  enforcement  of  a 
state  court  judgment  procured  by 
fraud,  accident,  or  mistake  cannot 
be  impaired  by  a  state  statute  giv- 
ing a  new  remedy  against  the  un- 
conscionable judgment  in  the  state 
courts:  National  Surety  Co.  v.  State 
Bank,  120  Fed.  593  (C.  C.  A.);  Breo- 
den  V.  Lee,  2  Hughes,  488,  Fed.  Cas. 
No.  1,828;  Davenport  v.  Moore,  74 
Fed.  945,  952;  Missouri,  K.  &  T. 
Co.  v.  Elliott,  56  Fed.  775.  It  is 
proper  for  the  federal  court  in  such 
cases  to  be  guided  by  a  state  statute 
which    requires   the    complainant    to 


§293 


EQUITY   JUKISPEUDENCB. 


560 


States   circuit   courts   to   entertain   a   suit   for   the   gen- 


show  that  he  is  equitably  not  bound 
to  pay  the  judgment;  Massachusetts 
Benefit  Life  Ass'n.  v.  Lohmiller,  74 
Fed.  23,  29,  20  C.  C.  A.  274,  46  U.  S. 
App.  103.  Injunction  against  the 
levying  of  an  execution  on  partner- 
ship property  in  which  the  judgment 
debtor  had  no  interest  will  not  be 
denied  because  the  state  statute  pro- 
vides a  legal  remedy;  Cropper  v. 
Coburn,  2' Curt.  465,  472,  Fed.  Cas. 
No.  3,416. 

Cancellation. — A  bill  by  a  mort- 
gagee to  set  aside  a  fraudulent  tax 
sale  of  the  premises  is  not  aifected 
by  a  state  statute  limiting  the  rem- 
edy to  the  owner;  Singer  Mfg.  Co. 
V.  Yarger,  2  McCrary,  585,  12  Fed. 
487,  488.  Jurisdiction  to  cancel  a 
forged  instrument  on  the  ground  of 
possible  loss  of  evidence  in  a  future 
suit  thereon  cannot  be  abridged  by 
the  existence  of  state  statutes  pro- 
viding for  the  perpetuation  of  testi- 
mony; Schmidt  v.  West,  104  Fed. 
272.  See,  also.  United  States  Life 
Ins.  Co.  V.  Cable,  98  Fed.  761,  39 
0.  C.  A.  756.  Statutory  remedy  by 
motion  to  vacate  an  award  of  arbi- 
trators does  not  deprive  the  federal 
courts  of  jurisdiction  to  set  aside 
the  award  and  enjoin  actions  there- 
on; Hartford  Fire  Ins.  Co.  v.  Bonner 
Mercantile  Co.,  44  Fed.  151,  11  L.  E. 
A.  623. 

Partition. — The  general  jurisdic- 
tion of  the  federal  courts  as  courts 
of  equity  cannot  be  limited  by  a 
state  statute  confining  the  remedy 
to  complainants  in  possession;  Lamb 
V.  Starr,  Deady,  350,  Fed.  Cas.  No. 
8,021. 

Specific  Performance  of  a  con- 
tract to  convey  lands  may  be  en- 
forced against  a  municipality,  al- 
though there  is  an  adequate  remedy 


by  mandamus  in  the  state  courts; 
Provisional  Municipality  of  Pensa- 
cola  V,  Lehman,  57  Fed.  324,  331, 
13  U.  S.  App.  411.  And  specific  per- 
formance by  a  municipality  of  an 
obligation  in  the  nature  of  an  im- 
plied trust  to  deliver  certain  bonds 
may  be  compelled,  notwithstanding 
that  the  state  provides  a  special 
statutory  remedy;  Kimball  v.  Mo- 
bile, 3  Woods,  565,  Fed.  Cas.  No. 
7,774. 

Foreclosure  of  Mortgages. —  The 
existence  of  a  state  statutory  rem- 
edy does  not  oust  the  federal  equity 
jurisdiction:  Benjamin  v.  Cavaroc, 
2  Woods,  172,  Fed.  Cas.  No.  1,300; 
Bay  V.  Tatum,  72  Fed.  112,  30  U.  S. 
App.  635  (deed  absolute  in  form); 
H.  B.  Claflin  Co.  v.  Furtick,  119  Fed. 
429  (chattel  mortgage).  The  juris- 
diction is  not  affected  by  the  fact 
that  the  mortgagor  has  made  a  stat- 
utory general  assignment  for  the 
benefit  of  creditors,  which  would 
have  the  effect  of  limiting  a  citizen 
of  the  same  state  to  enforcing  the 
mortgage  in  the  court  which  was  ad- 
ministering the  property;  Edwards 
V.  Hill,  59  Fed.  723,  19  U.  S.  App. 
493. 

Eq.uitable  Liens  may  be  enforced 
in  the  federal  courts,  although  no 
remedy  is  provided  for  the  enforce- 
ment of  such  liens  by  the  state  ju- 
risprudence in  the  state  courts;  Bur- 
don  Cent.  Sugar  Eefin.  Co.  v.  Ferris 
Sugar  Mfg.  Co.,  78  Fed.  417,  422. 

Creditor's  Bills  wUl  lie  in  the  fed- 
eral courts,  in  accordance  with  the 
general  principles  of  equity,  notwith- 
standing that  the  judgment  creditor 
may  have  a  legal  remedy  available 
in  the  courts  of  the  state.  See 
United  States  v.  Howland,  4  Wheat. 
108,  4  L.  Ed.   526    (a  leading  case; 


561 


JUDICIAL   INTERPRETATION    OF    JURISDICTION. 


293 


eral    administration    and    settlement    of    a    decedent's 


legal  remedy  in  state  courts  against 
the  debtor  of  complainants'  debtor) 
Byrd  v.  Badger,  1  McAll.  445,  Fed 
Cas.  No.  2,266  (proceedings  supple 
mentary  to  execution,  being  cqui 
table  in  thoir  nature,  cannot  be  pur 
sued  on  the  law  side  of  the  court)  ; 
Orendorf  v.  Budlong,  12  Fed.  24 
(setting  aside  fraudulent  convey- 
ance) ;  Fleisher  v.  Greenwald,  20 
Fed.  547  (setting  aside  fraudulent 
deed  of  assignment);  First  Nat. 
Bank  v.  Steinway,  77  Fed,  661; 
Mississippi  Mills  v.  Cohn,  150  U.  S. 
202,  14  Sup.  Ct.  75. 

Miscellaneous. — See  United  States 
V.  Parrott,  1  McAll,  2SS,  Fed.  Cas. 
No.  15,998  (injunction  against 
waste);  Pittsburgh,  C.  &  St.  L.  R. 
Co.  V.  Keokuk  &  H.  Bridge  Co.,  68 
Fed.  19,  46  U.  S.  App.  530  (account- 
ing); General  Electric  Co.  v.  West 
Asheville  Imp.  Co.,  73  Fed.  386 
(winding  up  affairs  of  defunct  cor- 
poration); Sowles  V.  First  Nat. 
Bank,  100  Fed.  552  (establishing  a 
set-off) ;  Barrett  v.  Twin  City  Power 
Co.,  118  Fed.  861.  Federal  court 
has  jurisdiction  to  remove  a  cloud 
on  title  at  the  suit  of  a  party  in 
possession,  though  under  the  en- 
larged scope  of  the  remedy  of  eject- 
ment the  remedy  in  the  state  court 
was  at  law:  Acord  v.  Western  Poco- 
hontas  Corporation,  156  Fed.  989; 
and  to  reform  deeds  in  complain- 
ant's chain  of  title  containing  a  mis- 
description of  the  land  intended  to 
be  conveyed,  though  the  state  stat- 
ute (Teunessee)  authorizes  relief  in 
a  eo.irt  of  law:  American  Ass'n  v. 
Williams,  166  Fed.  17,  93  C.  C.  A.  1; 
and  see  Butterlield  v.  Miller,  195 
Fed.  200,  115  C.  C.  A.  152. 

Enlargement    of    Jurisdiction     as 
Result    of    State   Legislation. — That 
1—36 


an  "enlargement  of  equitable  rights" 
effected  by  state  legislation  may  be 
administered  by  the  federal  courts 
is  a  familiar  doctrine.  "Although  a 
state  law  cannot  give  jurisdiction  to 
any  federal  court,  yet  it  may  give  a 
substantial  right  of  such  a  character 
that,  when  there  is  no  impediment 
arising  from  the  residence  of  the 
parties,  the  right  may  be  enforced 
in  the  proper  federal  tribunal, 
whether  it  be  a  court  of  equity,  ad- 
miralty or  of  common  law";  Rey- 
nolds V.  Crawfordsville  Bank,  112 
U.  S.  410,  5  Sup.  Ct.  216.  This  prin- 
ciple, however,  is  subject  to  impor- 
tant limitations  produced  by  section 
723  of  the  Revised  Statutes,  and  by 
the  seventh  amendment  of  the  Con- 
stitution of  the  United  States.  The 
state  law  "cannot  control  the  pro- 
ceedings in  the  federal  courts,  so  as 
to  do  away  with  the  force  of  the 
law  of  congress  declaring  that  'suits 
in  equity  shall  not  be  sustained  in 
either  of  the  courts  of  the  United 
States,  in  any  case  where  a  plain, 
adequate,  and  complete  remedy  may 
be  had  at  law,'  or  the  constitutional 
right  of  parties  in  actions  at  law  to 
a  trial  by  a  jury";  Whitehead  v. 
Shattuck,  138  U.  S.  146,  11  Sup.  Ct. 
277,  by  Field,  J.  "All  actions  which 
seek  to  recover  specific  property, 
real  or  personal,  with  or  without 
damages  for  its  detention,  or  a 
money  judgment  for  breach  of  a 
simple  contract,  or  as  damages  for 
injury  to  person  or  property,  are 
legal  actions,  and  can  be  brought  in 
the  federal  courts  only  on  their  law 
side.  Demands  of  this  kind  do  not 
lose  their  character  as  claims  cogni- 
zable in  the  courts  of  the  United 
States  only  on  their  law  side,  be- 
cause in  some  state  courts,  by  virtu© 


§293 


EQUITY    JURISPRUDENCE. 


562 


personal  estate,   when  the  citizenship   of  the  parties   is 


of  state  legislation,  equitable  relief 
in  aid  of  the  demand  at  law  may  be 
sought  in  the  same  action.  Such 
blending  of  remedies  is  not  permis- 
sible in  the  courts  of  the  United 
States":  Scott  v.  Neely,  140  U.  S. 
106,  11  Sup.  Ct.  712,  714,  by  Field, 
J.  See,  also,  South  Penn.  Oil  Co.  v. 
Miller,  175  Fed.  729,  99  C.  C.  A.  305. 
The  following  cases,  among  many 
others,  illustrate  this  principle:  The 
federal  courts  will  follow  a  state 
statute  extending  the  right  to  an  in- 
junction against  illegal  taxation;  no 
constitutional  right  to  a  jury  trial 
is  infringed  by  such  remedy;  Cum- 
mings  V.  National  Bank,  101  U.  S. 
157,  25  L.  Ed.  904;  Lindsay  v.  First 
Nat.  Bank,  156  U.  S.  485,  493, 
15  Sup.  Ct.  472,  475;  Grether  v. 
Wright,  75  Fed.  742,  746,  43  U.  S. 
App.  770;  Lander  v.  Mercantile  Nat. 
Bank  (C.  C.  A.),  118  Fed.  785,  791; 
but  see  Illinois  Life  Ins.  Co.  v.  New- 
man, 141  Fed.  449;  dispensing  with 
an  allegation  or  proof  of  defend- 
ant's insolvency  in  an  action  to  en- 
join the  cutting  of  timber;  Lanier  v. 
Allison,  31  Fed.  100,  102;  extending 
the  remedy  of  interpleader  to  cases 
where  the  conflicting  claims  are  in- 
dependent of  each  other;  Wells, 
Fargo  &  Co.  v.  Miner,  25  Fed.  533; 
allowing  jiartition  of  joint  posses- 
sory rights  to  a  mining  claim;  As- 
pen Mining  &  S.  Co.  v.  Eucker,  28 
Fed.  220;  contra,  Strettell  v.  Ballou, 
3  McCrary,  46,  9  Fed.  256;  declaring 
a  preferential  assignment  to  be  a 
trust  for  the  benefit  of  all  the  cred- 
itors of  the  assignor;  George  T. 
Smith  M.  P.  Co.  v.  McGroarty,  136 
U.  S.  240,  10  Sup.  Ct.  1019;  dispen- 
sing with  the  requirement  that  the 
complainant  must  do  equity,  in  a 
suit  to  set  aside  a  usurious  contract; 


Missouri,  K.  &  T.  Trust  Co.  v. 
Krumseig,  172  U.  S.  359,  361,  19  Sup. 
Ct.  179,  182,  183,'  affirming  77  Fed. 
41,  40  U.  S.  App.  620;  empowering 
courts  of  equity  to  pass  the  title  to 
real  estate  by  decree,  without  any 
act  on  the  part  of  the  respondent; 
A.  &  W.  Sprague  Mfg.  Co.  v.  Hoyt, 
29  Fed.  421,  428;  Single  v.  Scott 
Paper  Mfg.  Co.,  55  Fed.  553,  556; 
Deck  V.  Whitman,  96  Fed.  873,  re- 
viewing many  cases;  authorizing  the 
appointment  of  a  receiver  of  a  cor- 
poration on  the  sole  ground  of  its 
insolvency,  at  the  suit  of  mortgage 
creditors;  United  States  Shipbuild- 
ing Co.  V.  Conklin  (C.  C.  A.),  126 
Fed.  132,  authorizing  the  winding 
up  of  an  insolvent  corporation  at 
the  suit  of  a  stockholder;  .Jacobs  v. 
Mexican  Sugar  Co.,  130  Fed.  589. 
State  statute  extending  the  defini- 
tion of  "cloud  on  title"  to  include 
an  instrument  void  on  its  face: 
Louisville  &  Nashville  E.  Co.  v. 
Western  Union  Tel.  Co.,  234  U.  S. 
369,  58  L.  Ed.  1356,  34  Sup.  Ct.  810 
(statute  of  Mississippi) ;  citing  Eey- 
nolds  V.  First  Nat.  Bank,  112  U.  S. 
405,  28  L.  Ed.  733,  5  Sup.  Ct.  213. 
Authorizing  a  suit  in  equity  to  settle 
the  relative  priorities  of  all  persons 
claiming  water  from  the  same 
stream  or  source;  Ames  Eealty  Co. 
V.  Big  Indian  Mining  Co.,  146  Fed. 
166. 

It  is  often  a  question  of  doubt 
whether  the  new  right  or  remedy  is 
legal  or  equitable  in  its  nature. 
"Whenever  a  new  right  is  granted 
by  statute,  or  a  new  remedy  for  vio- 
lation of  an  old  right,  or  whenever 
such  rights  and  remedies  are  de- 
pendent on  state  statutes  or  acts  of 
Congress,  the  jurisdiction  of  such 
cases,  as  between  the  law  side  and 


663 


JUDICIAL   INTERPRETATION    OF    JURISDICTION. 


§293 


such    as    to    confer    the   jurisdiction.     In   very   many    of 


the  equity  side  of  the  federal  courts, 
must  be  determined  by  the  essential 
character  of  the  case;  and  unless  it 
comes  within  some  of  the  recognized 
heads  of  equitable  jurisdiction,  it 
must  be  held  to  belong  to  the  other." 
Van  Norden  v.  Morton,  99  U.  S.  378, 
380,  25  L.  Ed.  455;  Cherokee  Nation 
V.  Southern  Kan.  E'y  Co.,  135  U.  S. 
641,  651,  10  Sup.  Ct.  965,  969,  33 
Fed.  900,  914;  Thomas  v.  American 
Freehold,  etc.,  Co.,  47  Fed.  550,  12 
L.  R.  A.  686;  Cummings  v.  National 
Bank,  101  U.  S.  157,  25  L.  Ed.  904; 
Robinson  v.  Campbell,  3  Wheat.  212, 
223,  4  L.  Ed.  372. 

In  the  following  cases  it  was  held 
that  the  new  right  created  by  stat- 
ute should  be  asserted  on  the  equity 
side  of  the  federal  court:  When  the 
relief  prayed  for  was  in  the  nature 
of  a  decree  enjoining  the  collection 
of  taxes;  Lindsay  v.  First  Nat. 
Bank,  156  U.  S.  485,  493,  15  Sup.  Ct. 
472,  475;  statutory  proceedings  for 
partition  which,  by  the  state  prac- 
tice, were  triable  without  a  jury; 
Klever  v.  Seawell,  65  Fed.  393,  22 
U.  S.  App.  715,  12  C.  C.  A.  661;  pro- 
ceedings without  a  jury,  to  enforce 
the  right  of  an  occupying  claimant 
of  land  to  compensation  for  im- 
provements made  thereon  in  good 
faith;  Bank  of  Hamilton  v.  Dudley's 
Heirs,  2  Pet.  492;  Griswold  v. 
Bragg,  18  Blatchf.  204,  48  Fed.  520; 
proceedings  to  enforce  a  mechanics' 
or  laborers'  lien,  where  the  state 
statute  gives  an  action  at  law  for 
the  purpose;  Sheffield  Furnace  Co.  v. 
Witherow,  149  U.  S.  574,  579,  13 
Sup.  Ct.  936,  939;  De  La  Vergne 
Refrig.  Mach.  Co.  v.  Montgomery 
Brewing  Co.,  46  Fed.  829;  Idaho, 
etc..  Land  Imp.  Co.  v.  Bradbury,  132 
U.   S.  509,  515,   10   Sup.   Ct.   179;    or 


provides  no  means  for  enforcing  it; 
Gilchrist  v.  Helena  H.  S.  &  S.  R.  Co., 
58  Fed.  708,  711,  712.  See,  also, 
Healy  Ice  Machine  Co.  v.  Green,  181 
Fed.  890;  Armstrong  Cork  Co.  v. 
Merchants'  Refrigerating  Co.,  184 
Fed.  199,  107  C.  C.  A.  93;  Sehmul- 
bach  v.  Caldwell,  196  Fed.  16,  115 
C.  C.  A.  650;  proceedings  to  deter- 
mine and  enforce  other  statutory 
liens  upon  land;  Alexander  v.  Mort- 
gage Co.  of  Scotland,  47  Fed.  131, 
134;  Mortgage  Security  Co.  v.  Gay, 
33  Fed.  636;  Thomas  v.  American 
Freehold  L.  &  M.  Co.,  47  Fed.  550, 
553,  12  L.  R.  A.  681;  proceedings  to 
enjoin  the  sale  of  land  under  an  exe- 
cution against  a  third  person  (Geor- 
gia "claim  law");  Hall  v.  Yahoka  R. 
Min.  Co.,  1  Woods,  547,  Fed.  Cas. 
No.  5,955.  "Proceedings  supplemen- 
tary to  execution"  cannot  be  substi- 
tuted for  a  creditor's  bill;  Byrd  v. 
Badger,  Fed.  Cas.  No.  2,266;  Regina 
Music  Box  Co.  V.  F.  G.  Otto  &  Son, 
124  Fed.  747;  unless  they  are 
founded  on  a  common-law  judgment, 
in  which  case  the  state  statute  may 
be  followed,  by  the  express  authori- 
zation of  Act  July  1,  1872,  chap.  255, 
§6;  Re  Boyd,  105  U.  S.  647,  2^ 
L.  Ed.  1200. 

In  the  following  cases  the  statu- 
tory remedy  is  held  to  be  legal  in  its 
nature:  Special  proceedings  by  an 
administrator  for  leave  to  sell  lands 
to  pay  the  debts  of  a  decedent,  al- 
though held  by  the  state  court  to  be 
essentially  equitable,  must  be  placed 
upon  the  law  docket  of  the  federal 
court,  since  the  case  does  not  come 
within  any  of  the  recognized  heads 
of  equity  jurisdiction;  Elliott  v. 
Shuler,  50  Fed.  454;  a  state  statute 
conferring  equity  jurisdiction  in 
eases   of  accounting  where  "the  na- 


§293 


EQUITY    JURISPRUDENCE. 


564 


the  states  the  whole  subject  of  administration  has  been 


ture  of  the  account  is  such  that  it 
cannot  be  conveniently  and  properly 
adjusted  and  settled  in  a  court  of 
law"  does  not  extend  the  jurisdic- 
tion of  the  federal  courts;  Hunton 
V.  Equitable  Life  Assur.  Soc,  45 
Fed.  661;  and  a  bill  cannot  be  enter- 
tained for  partition  where  the  com- 
plainant has  been  disseised,  and  the 
lands  are  held  adversely  by  the  de- 
fendants, although  such  a  bill  is 
permitted  by  the  state  practice; 
Sanders  v.  Devereux,  60  Fed.  311, 
315,  19  U.  S.  App.  630;  Frey  v.  Wil- 
loughby,  63  Fed.  865,  27  U.  S.  App. 
417,  11  C.  C.  A.  463;  or  when  the 
complainant's  title  is  disputed; 
American  Ass'n  v.  Eastern  Kentucky 
Land  Co.,  68  Fed.  721.  Garnishment 
proceedings  cannot  be  entertained 
on  the  equity  side  of  the  federal 
court;  United  States  v.  Swan,  65 
Fed.  647,  652,  31  U.  S.  App.  112. 
Where  a  new  liability,  and  a  legal 
remedy  to  enforce  the  same,  are  cre- 
ated by  statute,  that  remedy,  and 
that  alone,  must  be  enforced;  so  held 
of  the  statutory  liability  of  stock- 
holders for  the  debts  of  the  corpora- 
tion, in  Fourth  Nat.  Bank  v.  Franck- 
lyn,  120  U.  S.  755,  7  Sup.  Ct.  757, 
762;  National  Park  Bank  v.  Peavey, 
64  Fed.  912;  First  National  Bank  v, 
Peavey,  69  Fed.  455;  and  see  Alder- 
son  V.  Dole,  74  Fed.  29,  33  U.  S. 
App.  460,  20  C.  C.  A.  280. 

Enlargement  of  Jurisdiction;  Stat- 
utory Suit  to  Quiet  Title. — A  fre- 
quent application  of  these  principles 
is  found  in  the  federal  jurisdiction 
over  statutory  suits  to  quiet  title. 
In  the  absence  of  statute,  an  owner 
of  land  can  protect  his  title  in 
equity  only  by  a  bill  of  peace  or  by 
a  bill  quia  timet  to  remove  a  cloud 
upon  the  title.     A  bill  of  peace  prop- 


erly lies  against  an  individual  reiter- 
ating an  unsuccessful  claim  to  real 
property  only  where  the  plaintiff  is 
in  possession  and  his  right  has  been 
successfully  maintained  at  law.  The 
equity  arises  from  the  protracted 
litigation  for  the  possession  which 
the  common-law  action  of  ejectment 
permits.  A  bill  quia  timet  to  re- 
move cloud  upon  title  differs  from  a 
bill  of  peace  in  that  it  does  not  seek 
so  much  to  put  an  end  to  vexatious 
litigation  as  to  prevent  future  liti- 
gation by  removing  existing  causes 
of  controversy  as  to  its  title.  To 
maintain  a  suit  of  this  character  it 
is  generally  necessary  that  the  plain- 
tiff be  in  possession,  and,  except 
where  the  defendants  are  numerous, 
that  his  title  be  established  at  law 
or  founded  on  undisputed  evidence 
or  long-continued  possession.  The 
statutes  in  various  states  authorize 
a  suit  in  either  of  these  classes  of 
cases  without  reference  to  any  pre- 
vious judicial  determination  of  the 
validity  of  the  plaintiff's  right,  and, 
in  some  instances,  without  reference 
to  his  possession. 

Where  the  statute  limits  the  right 
to  parties  in  possession,  the  federal 
courts  will  take  jurisdiction  without 
question.  The  point  arose  in  the 
early  case  of  Clark  v.  Smith,  13  Pet. 
195,  203,  where  the  right  was  claimed 
under  a  statute  of  Kentucky.  Ca- 
tron, J.,  said:  "Kentucky  has  the 
undoubted  power  to  regulate  and  pro- 
tect individual  rights  to  her  soil, 
and  to  declare  what  shall  form  a 
cloud  on  titles;  and  having  so  de- 
clared, the  courts  of  the  United 
States,  by  removing  such  clouds,  are 
only  applying  an  old  practice  to  a 
new  equity  created  by  the  legisla- 
ture, having  its  origin  in  the  pecu- 


565 


JUDICIAL   INTERPEETATION    OF    JURISDICTION. 


§293 


taken    from    the    equity    tribunals,    and    conferred    upon 


liar  condition   of  the   country."     In 
speaking  of  such  a  statute,  the  court, 
in  Central  Pac  E.  R.  Co.  v.  Dyer,  1 
Sawy.    649,    Fed.     Cas.    No.     2,552, 
said:   "It  dispenses  with  the  neces- 
sity of  the  previous  establishment  of 
the  right  of  the  plaintiff  by  repeated 
judgments  in  his  favor  in  actions  at 
law.     To  that  extent  it  confers  upon 
the  possessor  of  real  property  a  new 
right,  one  which  enables  him,  without 
the  delay  of  previous  proceedings  at 
law,  to  draw  to  himself  all  outstand- 
ing inferior  claims.     That  right  the 
national   courts  will  enforce  in  the 
same  manner  in  which  they  will  en 
force  other  equitable  rights  of  par 
ties."    See,  also.  Chapman  v.  Brewer 
114  U.  S.   171,  5  Sup.  Ct.   799,   805 
Bardon  v.   Land   &  Eiver  Imp.   Co. 
157  U.  S.  327,  330,  15  Sup.  Ct.  650 
651;  Wickliffe  v.  Owens,  17  How.  47 
51;    Provident,    etc.,    Trust    Co.    v 
Mills,  91  Fed.  435;  Book  v.  Justice 
58   Fed.   830;   Bayerque  v.  Cohen,   1 
McAll.  117,  Fed.  Cas.  No.  1,134;  Law 
rence  v.  Bowman,  1  McAll.  423,  Fed 
Cas.   No.   8,134;   Prentice  v.   Duluth 
etc.,  Co.,  58  Fed.  437,  442,  7  C.  C.  A 
293,    19    U.    S.    App.    100;    Gillis    v 
Downey,  85  Fed.  483,  56  U.  S.  App 
577;  Harmer  v.  Gwynne,  5  McLean 
317,    Fed.    Cas.    No.    6,075.     For    a 
review    of    the    supreme   court    deci 
sions   up   to    1894,    see    Wehrman   v 
Conklin,   155  U.  S.   314,   15  Sup.  Ct 
132.     See,  also,  the  following  recent 
cases:  Lawson  v.  United  States  Min- 
ing Co.,  207  U.  S.  1,  52  L.  Ed.  65,  28 
Sup.    Ct.   15;    Union   Pac.   R.   Co.   v. 
Cunningham,  173  Fed.  90;  New  Jer- 
sey &  N.  C.  Land  &  Lumber  Co.  v. 
Gardner-Lacy  Lumber  Co.,  178  Fed. 
772,  102  C.  C.  A.  220,  190  Fed.  861. 
An  actual  possession  of  part  of  the 
premises  and  a  constructive   posses- 


sion of  the  rest  is  sufficient;  Rob- 
erts V.  Northern  Pac.  R.  Co.,  158 
U.  S.  1,  30,  15  Sup.  Ct.  756,  766. 
Where  the  statute  allows  the  suit 
by  a  party  either  in  or  out  of  pos- 
session, and  the  complainant  is,  as  a 
matter  of  fact,  in  possession,  the  bill 
may  be  maintained  in  the  federal 
court:  Connor  v.  Alligator  Lumber 
Co.,  98  Fed.  155;  Langstraat  v.  Nel- 
son, 40  Fed.  783;  Field  v.  Barber 
Asphalt  Co.,  117  Fed.  925;  Hanley 
V.  Beatty,  117  Fed.  59.  See,  also, 
North  Carolina  Mining  Co.  v.  West- 
feldt,  151  Fed.  290;  A.  G.  "WIneman 
&  Sons  V.  Reeves,  245  Fed.  254,  It 
is  immaterial  that  there  may  be  an 
action  of  ejectment  pending  against 
the  complainant:  Langstraat  v.  Nel- 
son, 40  Fed.  783. 

Where  the  statute  allows  a  suit  by 
a  party  out  of  possession,  a  federal 
court  will  not  as  a  general  rule  en- 
force it  if  the  complainant  is,  as  a 
matter  of  fact,  out  of  possession,  and 
defendant  is  in  possession.  It  is  pro- 
vided by  Rev.  Stats.,  §  723,  that  fed- 
eral equity  courts  shall  not  have 
jurisdiction  where  a  plain,  complete, 
and  adequate  remedy  may  be  had  at 
law,  and  the  seventh  amendment  to 
the  constitution  of  the  United  States 
secures  the  right  of  jury  trial  in  all 
actions  at  law  where  the  value  in 
controversy  exceeds  twenty  dollars. 
When  the  plaintiff  is  out  of  and  the 
defendant  in  possession,  the  remedy 
by  ejectment  is  said  to  be  adequate, 
and  there  must  be  a  jury  trial  if  de- 
sired. "The  right  which  in  this  case 
the  plaintiff  wishes  to  assert  is  his 
title  to  certain  property;  the  remedy 
which  he  wishes  to  obtain  is  its  pos- 
session and  enjoyment;  and  in  a 
contest  over  the  title  both  parties 
have    a   constitutional   right   to    call 


293 


EQUITY   JUEISPRUDENCE. 


566 


probate  courts  acting  under  special  statutory  authority. 


for  a  jury";  Whitehead  v.  Shattuck, 
138  U.  S.  146,  11  Sup.  Ct.  276,  277. 
See,  also,  Davidson  v.  Calkins,  92 
Fed.  230,-  Gordon  v.  .Jackson,  72  Fed. 
86;  Cosmos  Exploration  Co.  v.  Gray 
Eagle  Oil  Co.,  112  Fed.  4,  61  L.  R. 
A.  230,  50  C.  C.  A.  79;  U.  S.  Min. 
Co.  V.  Lavvson,  115  Fed.  1005;  Cal. 
Oil  &  Gas  Co.  V.  Miller,  96  Fed.  12; 
Adoue  V.  Strahan,  97  Fed.  961;  Gom- 
bert  V.  Lyon,  80  Fed.  305;  Boston  & 
Mont.  C.  C.  &  S.  M.  Co.  v.  Montana 
Ore  P.  Co.,  188  U.  S.  632,  23  Sup.  Ct. 
434;  Morrison  v.  Marker  (C  C.  A.), 
93  Fed.  692,  695  (suit  not  maintain- 
able by  purchaser  at  execution  sale, 
who  is  not  in  possession,  to  set  aside 
prior  conveyance  as  in  fraud  of  cred- 
itors) ;  Giberson  v.  Cook,  124  Fed. 
986.  See,  also.  New  Jersey  Land  & 
Lumber  Co.  v.  Gardner  Lacy  Lumber 
Co.,  190  Fed.  861.  The  same  result 
was  reached  in  United  States  v.  Wil- 
son, 118  U.  S.  86,  6  Sup.  Ct.  993, 
under  a  provision  of  the  Tennessee 
code  giving  the  chancery  court  juris- 
diction over  an  action  of  ejectment. 
The  practice  in  such  cases  is  not  to 
dismiss  but  to  remand  to  the  state 
court;  Gombert  v.  Lyon,  80  Fed.  305. 
In  Greeley  v.  Lowe,  155  U.  S.  58,  75, 
15  Sup.  Ct.  24,  28,  it  is  said  that  the 
federal  courts  will  enforce  a  state 
statute  allowing  a  party  in  or  out  of 
possession  to  sue  to  quiet  title,  pro- 
vided it  does  not  infringe  the  consti- 
tutional right  to  a  trial  by  jury.  In 
Southern  Pac.  R.  Co.  v.  Goodrich, 
57  Fed.  879,  it  was  held  that  the 
plaintiff  must  allege  possession  iiT 
himself  or  deny  possession  in  defend- 
ant. It  is  not  sufficient  that  it  does 
not  appear  who  is  in  possession.  But 
see  Union  Pac.  R.  Co.  v.  Meier,  28 
Fed.  9.  In  Morse  v.  Steinbach.  127 
U.   S.   70,   8   Sup.   Ct.   1067,   1072,   it 


was  held  that  a  failure  to  allege  and 
prove  possession  is  not  fatal  where 
the  statute  allows  a  party  out  of 
possession  to  maintain  the  bill.  Like- 
wise, in  Reynolds  v.  First  Nat.  Bank, 
112  U.  S.  410,  5  Sup.  Ct.  212,  216,  it 
was  held  that  a  federal  court  will 
allow  a  party  either  in  or  out  of  pos- 
session to  maintain  the  suit.  Appar- 
ently the  defendant  was  in  posses- 
sion, but  the  relief  was  allowed.  In 
both  of  these  cases,  Holland  v.  Chal- 
len,  110  U.  S.  15,  3  Sup.  Ct.  495,  was 
relied  upon.  As  is  shown  in  White- 
head v.  Shattuck,  138  U.  S.  146,  11 
Sup.  Ct.  276,  the  case  of  Holland  v. 
Challen  does  not  go  to  this  extent. 
It  applies  simply  where  both  plain- 
tiff and  defendant  are  out  of  posses- 
sion. Hence  both  must  be  consid- 
ered as  overruled,  so  far  as  they  are 
contrary  to  the  principles  laid  down 
above. 

Although  a  party  be  out  of  posses- 
sion, if  equity  alone  can  award  the 
entire  relief  sought,  and  the  right  to 
possession  arises  only  incidentally, 
the  bill  will  be  retained  for  complete 
relief  and  the  right  to  possession  de- 
termined. Thus,  under  the  Burnt 
Records  Act  of  Illinois,  a  federal 
court  has  taken  jurisdiction  of  a  bill 
by  a  party  out  of  possession  to  re- 
store a  destroyed  record  of  title,  and 
incidentally  has  decided  the  question 
of  possession.  Gormley  v.  Clark,  134 
U.  S.  338,  348,  10  Sup.  Ct.  554.  Like- 
wise, the  bill  has  been  retained  when 
the  plaintiff  has  sought  to  redeem 
from  a  fraudulent  foreclosure;  Hud- 
son v.  Randolph,  66  Fed.  216,  23  U. 
S.  App.  681,  and  to  set  aside  fraudu- 
lent proceedings  under  which  deeds 
were  made;  Sayers  v.  Burkhardt,  85 
Fed.  246,  42  U.  S.  App.  742.  Where 
the    facts    are    such    that    ejectment 


567 


JUDICIAL    INTERPRETATION    OF    JURISDICTION. 


293 


This   legislation,   it   is  held,   has   not   affected   the   origi- 


will  not  lie,  or  plaintiff  has  no  ade- 
quate remedy  at  law,  equity  should 
take  jurisdiction:  Stuart  v.  Union 
Pac.  E.  Co.,  178  Ted.  753,  103  C.  C. 
A.  89. 

Where  neither  party  is  in  posses- 
sion and  the  land  is  unoccupied,  the 
case  is  different.  In  such  a  case 
there  can  be  no  controversy  at  law 
respecting  the  title  or  right  of  pos- 
session, for  an  action  of  ejectment 
will  lie  only  against  a  party  in  pos- 
session. Accordingly  the  federal 
courts  will  take  jurisdiction  and  en- 
force the  equitable  right.  Holland 
V.  Challen,  110  U.  S.  16,  3  Sup.  Ct. 
495.  The  reasons  are  well  stated  in 
a  recent  case:  "As  it  appears  that 
the  defendant  was  not  in  possession 
of  the  lands,  and  that  the  plaintiff 
has  no  adequate  remedy  at  law,  and 
that  the  defendant  is  not  deprived 
of  the  right  of  a  trial  by  jury,  there 
is  no  valid  objection  to  the  jurisdic- 
tion of  the  United  States  circuit 
coart";  Southern  Pine  Co.  v.  Hall, 
105  Fed.  84,  44  C.  C.  A.  363.  See, 
also,  Dick  v.  Foraker,  155  U.  S. 
404,  415,  15  Sup.  Ct.  124,  129;  Eob- 
erts  v.  Northern  Pac.  R.  R.  Co.,  158 
U.  S.  1,  30,  15  Sup.  Ct.  756,  766 
Davidson  v.  Calkins,  92  Fed.  230 
Gordon  v.  Jackson,  72  Fed.  86;  U.  S, 
Min.  Co.  v.  Lawson,  115  Fed.  1005 
Grand  Rapids,  etc.,  R.  Co.  v.  Spar 
row,  36  Fed.. 210,  211,  1  L.  R.  A.  482 
Harding  v.  Guice,  80  Fed.  162,  42 
U.  S.  App.  411.  See,  also,  "Warren 
V.  Oregon  &  Washington  Realty  Co., 
156  Fed.  203;  North  Star  Lumber  Co. 
V.  Johnson,  196  Fed.  56;  Baum  v. 
Longwell,  200  Fed.  450.  In  Blythe 
v.  Hinckley,  84  Fed.  246,  256,  it  was 
held  that  the  bill  cannot  be  main- 
tained when  a  public  administrator 
is   in  possession,   although   both   the 


parties  to  the  suit  are  out  of  posses- 
sion. Of  course,  where  the  statute 
expressly  authorizes  a  suit  when  the 
land  is  vacant,  the  bill  will  be  sus- 
tained; Bigplow  v.  Chatterton,  51 
Fed.  614,  10  U.  S.  App.  267,  2  C.  C.  A. 
402. 

The  mere  fact  that  the  decisions 
of  the  state  courts  warrant  the  re- 
lief does .  not  authorize  the  federal 
courts  to  grant  it.  Thus,  in  Peck  v. 
Ayers  &  Lord  Tie  Co.,  116  Fed.  273, 
"It  is  not  claimed  that  there  is  any 
statute  in  Tennessee  which  enlarges 
the  principles  of  equity  in  this  re- 
gard, but  it  is  claimed  that  the  de- 
cisions of  the  supreme  court  of  the 
state  respecting  the  right  to  file  a 
bill  to  quiet  title  have  established  a 
different  rule  from  that  generally 
prevailing  in  the  courts  of  the 
United  States,  and  hold  that  posses- 
sion by  the  plaintiff  is  not  necessary. 
But  this  is  a  mere  variation  of 
decision  in  respect  of  a  principle  of 
general  equity,  and  we  are  not  aware 
of  any  precedent  for  holding  that 
the  rule  so  established  can  be  ad- 
mitted to  change  the  doctrines  of 
equity  as  recognized  and  applied  in 
the  federal  courts."  But  see,  contra. 
Lamb  v.  Farrell,  21  Fed.  5,  8. 

Statutory  Creditors'  Suits  by  Sim- 
ple Contract  Creditors. — In  some  of 
the  states  statutes  have  been  passed 
allowing  simple  contract  creditors  to 
maintain  creditors'  bills  without  the 
establishment  of  their  claims  at  law. 
The  supreme  court  has  declined  to 
enforce  these  statutes.  In  the  lead- 
ing case  of  Scott  v.  Ne'oly,  140  U.  S. 
106,  11  Sup.  Ct.  712,  Justice  Field 
said:  "All  actions  which  seek  to  re- 
cover specific  property,  real  or  per- 
sonal, with  or  without  damages  for 
its  detention,  or  a  money  judgment 


§293 


EQUITY    JURISPRUDENCE. 


568 


nal    equitable    jurisdiction    of    the    national    courts    sit- 


f  or  breach  of  a  simple  contract,  or  as 
damages  for  injury  to  person  or  prop- 
erty, are  legal  actions,  and  can  be 
brought  in  the  federal  courts  only  on 
their  law  side.  Demands  of  this 
kind  do  not  lose  their  character  as 
claims  cognizable  in  the  courts  of 
the  United  States  only  on  their  law 
side,  because  in  some  state  courts,  by 
virtue  of  state  legislation,  equitable 
relief  in  aid  of  the  demand  at  law 
may  be  sought  in  the  same  action. 
Such  blending  of  remedies  is  not  per- 
missible in  the  courts  of  the  United 
States."  Following  this  case,  Mr. 
Chief  Justice  Fuller,  in  Gates  v.  Al- 
len, 149  U.  S.  457,  13  Sup.  Ct.  883, 
after  pointing  out  that  the  right  to 
maintain  a  creditor's  bill  is  based 
upon  a  lien  upon  the  property,  said: 
"The  fact  that  section  1845  aims  to 
create  a  lien  by  the  filing  of  the  bill 
does  not  affect  the  question,  for,  in 
order  to  invoke  equity  interposition 
in  the  United  States  courts,  the  lien 
must  exist  at  the  time  the  bill  is 
filed,  and  form  its  basis;  and  to  al- 
low a  lien  resulting  from  the  issue  of 
process  to  constitute  such  ground 
would  be  to  permit  state  legislation 
to  withdraw  all  actions  at  law  from 
the  one  court  to  the  other,  and  unite 
legal  and  equitable  claims  in  the 
same  action,  which  cannot  be  allowed 
in  the  practice  of  the  courts  of  the 
United  States,  in  which  the  distinc- 
tion between  law  and  equity  is  matter 
of  substance,  and  not  merely  of  form 
and  procedure."  To  the  same  effect, 
see  Smith  v.  Fort  Scott,  etc.,  E.  E. 
Co.,  99  U.  S."  401;  Mississippi  Mills 
v.  Cohn,  150  U.  S.  202,  14  Sup.  Ct. 
76;  Hollins  v.  Brierfield,  etc..  Iron 
Co.,  150  U.  S.  371,  379,  14  Sup.  Ct. 
127,  128;  Peacock,  Hunt  &  West  Co. 
V.    Williams,    110   Fed.   917;    United 


States  v.  Ingate,  48  Fed.  251;  At- 
lanta, etc.,  E.  Co.  V.  Western  E. 
Co.,  50  Fed.  790,  794,  2  U.  S.  App. 
227,  1  C.  C.  A.  776;  England  v.  Eus- 
sell,  71  Fed.  818,  821,  824;  Childs  v. 
N.  B.  Carlstein  Co.,  76  Fed.  86,  92, 
95;  Tompkins  Co.  v.  Catawba  Mills, 
82  Fed.  780,  783;  First  Nat.  Bank  v. 
Prager,  91  Fed.  689,  692,  63  U.  S. 
App.  709;  Morrow  Shoe  Co.  v.  Now 
England  Shoe  Co.,  60  Fed.  341,  24 
L.  R.  A.  425,  18  U.  S.  App.  616, 
8  C.  C.  A.  652;  Jacobs  v.  Mexican 
Sugar  Co.,  130  Fed.  589.  See.  also, 
the  recent  cases:  Davidson-Wesson 
Implement  Co.  v.  Parlin  &  Orendorf 
Co.,  141  Fed.  37,  72  C.  C.  A.  525; 
Mathews  Slate  Co.  v.  Mathews,  148 
Fed.  490;  Smith  v.  Lloyd,  207  Fed. 
815.  Likewise,  a  federal  court  has 
no  jurisdiction  over  a  proceeding  for 
equitable  attachment,  although  al- 
lowed under  the  state  law.  Hall  v. 
Gambril,  92  Fed.  321,  63  U.  S.  App. 
751,  34  C.  C.  A.  190. 

In  Gates  v.  Allen,  however,  th«re 
is  a  vigorous  dissenting  opinion  by 
Mr.  Justice  Brown,  which  seems  to 
have  much  reason  on  its  side  (13  Sup. 
Ct.  977).  He  held  that  the  statute 
creates  a  substantial  right  which  the 
federal  courts  should  enforce.  "In 
this  case  the  court  of  equity  proceeds 
to  establish  the  debt,  not  as  a  per- 
sonal judgment  against  the  debtor, 
which  may  be  sued  upon  in  any  other 
court,  but  for  a  purpose  special  to 
that  ease,  in  order  to  reach  property 
which  has  been  fraudulently  con- 
veyed, and  to  appropriate  it  to  the 
payment  of  the  debt.  If  the  object 
of  the  proceeding  were  the  establish- 
ment of  a  debt  for  all  purposes, 
which  should  become  res  adjudicata 
in  other  proceedings,  and  be  suable 
elsewhere    as    an    established    claim 


569 


JUDICIAL   INTERPRETATION    OF    JURISDICTION. 


§293 


ting  in  such   states,  nor  interfered  with  their  power  to 


against  the  debtor,  or  were  not  a 
mere  incident  to  the  chancery  juris- 
diction, I  can  understand  why  the 
constitutional  provision  might  apply. 
But  in  this  case  I  see  no  more  reason 
for  requiring  a  common-law  action  to 
establish  the  debt  than  in  case  of 
the  foreclosure  of  a  mortgage,  or  the 
enforcement  of  a  mechanic's  lien, 
where  proof  of  an  existing  debt  is 
equally  necessary  to  warrant  a  de- 
cree." And  referring  to  the  stand 
taken  by  the  majority,  he  said:  "The 
logical  consequence  of  the  position 
assumed  by  the  court  in  this  case  is 
that  it  is  compelled  to  remand  the 
case  for  a  reason  entirely  outside  the 
removal  acts,  and  thus  to  deny  to 
the  removing  party  the  benefit  of  the 
act."  "I  have  never  known  of  a  fed- 
eral court  admitting  its  inability  to 
do  justice  between  the  parties,  and 
remanding  the  case  upon  that 
ground."  For  earlier  cases,  sustain- 
ing the  right  to  maintain  the  bill, 
see  Flash  v.  Wilkerson,  22  Fed.  689, 
691;  Johnston  v.  Straus,  4  Hughes, 
636,  26  Fed.  .57,  67;  Buford  v.  Holley, 
28  Fed.  680. 

The  effect  of  the  supreme  court 
decisions  is  to  compel  a  non-resident 
creditor  to  resort  to  the  state  courts 
or  else  be  placed  at  a  disadvantage 
as  compared  with  the  resident  credi- 
tors. Consequently  some  of  the  fed- 
eral courts  are  inclined  to  confine 
the  decisions  strictly,  and  upon  any 
possible  ground  of  distinction  to  al- 
low the  bill.  Thus,  in  Darragh  v.  H. 
Wetter  Mfg.  Co.,  78  Fed.  7,  23  C.  C. 
A.  609,  a  bill  by  a  simple  contract 
creditor  to  wind  up  a  corporation 
was  allowed,  under  a  statute  of  Ar- 
kansas. In  the  well-considered  case 
of  Jones  V.  Mutual  Fidelity  Co.,  123 
Fed.  506  (Bradford,  D.  J.),  jurisdic- 


tion was  entertained,  at  the  suit  of 
simple  contract  creditors,  of  a  bill 
under  the  Delaware  statute  for  the 
appointment  of  a  receiver  to  ad- 
minister the  affairs  of  an  insolvent 
corporation.  It  was  held  (p.  524), 
that  the  statute  "created  a  substan- 
tial right  of  a  purely  equitable  na- 
ture, and  a  purely  equitable  proce- 
dure to  enforce  it,"  and  that  the 
pursuit  of  and  exhaustion  of  the 
legal  remedy  by  an  application  of 
the  assets  of  the  insolvent  corpora- 
tion to  final  process  at  law  would  be 
destructive  of  the  right  conferred  by 
the  statute.  The  decisions  in  Scott 
V.  Neely,  140  U.  S.  106,  35  L.  Ed. 
358,  11  Sup.  Ct.  712,  and  Gates  v. 
Allen,  149  U.  S.  451,  37  L.  Ed.  804, 
13  Sup.  Ct.  977,  and  dictum  in  Hol- 
lins  v.  Brierfield  Coal  &  Iron  Co., 
150  V.  S.  371,  37  L.  Ed.  1113,  14  Sup. 
Ct.  127,  were  interpreted  as  refer- 
ring only  to  cases  where  the  com- 
plainants pursue,  ah  initio,  a  purely 
equitable  remedy  for  purpose  merely 
of  removing  "some  obstacle  or  diffi- 
culty in  the  way  of  the  due  and 
beneficial  execution  of  the  final  pro- 
cess." In  Hudson  v.  Wood,  119  Fed. 
764,  it  was  held  that  a  creditor's  hill 
brought  by  a  simple  contract  credi- 
tor may  be  retained  for  a  discovery 
and  for  the  establishment  of  "the 
right  to  an  equitable  lien  ('equitable 
levy,'  as  it  is  sometimes  called) 
upon  any  indebtedness  of  his  to  the 
judgment  debtors,  such  lien  to  be- 
come effective  and  to  be  enforced 
when  such  indebtedness,  if  denied, 
shall  have  been  ascertained  in  an  ac- 
tion at  law."  This  rule  at  least  has 
the  merit  of  protecting  the  party 
who  resorts  to  the  federal  courts 
from  being  postponed  to  those  who 
resort  to  the  state  courts.     By  the 


§293 


EQUITY   JURISPRUDENCE. 


570 


entertain  a  suit  for  administration  in  a  proper  case.^  ^ 
§  293,  2  Pratt  v.  Northam,  5  Mason,  95,  105,  per  Story,  J. 


laws  of  South  Dakota,  a  fraudulent 
assignment  acts  as  a  trust  for  the 
benefit  of  all  the  creditors.  Under 
this  legislation  a  federal  court  has 
allowed  a  simple  contract  creditor 
to  sue  to  enforce  the  trust:  Wyman 
V.  Mathews,  53  Fed.  678.  In  Crad- 
dock  V.  Fulton  (C.  C.  W.  Va.),  140 
Fed.  426,  it  was  held  that  a  suit  in 
equity  authorized  by  the  "West  Vir- 
ginia statute,  based  on  an  attachment 
on  the  property  of  a  non-resident, 
was  removable  to  the  federal  court, 
and  that  such  suit,  being  based  on 
a  legal  lien  acquired  before  the  in- 
stitution of  the  suit  in  equity,  did 
not  offend  against  the  rule  of  Scott 
V.  Neely. 

Where  a  judgment  would  be  use- 
less and  the  debt  has  been  admitted, 
the  bill  has  been  sustained.  Thus,  in 
Talley  v.  Curtain,  54  Fed.  43,  8  U.  S. 
App.  347,  the  debtor  made  a  general 
assignment,  in  which  complainant's 
debt  was  recognized.  It  was  held 
that  complainant,  although  he  had 
not  established  his  claim  at  law, 
might  maintain  a  bill  to  set  aside 
the  assignment. 

§293,  (b)  Jurisdiction  Over  Ad- 
ministration of  Estates  of  Decedents. 
This  original  jurisdiction  of  courts 
of  equity  in  the  administration  of 
estates  has  been  exercised  by  the 
United  States  courts  in  a  very  great 
number  of  cases.  "As  a  part  of  the 
ancient  and  original  jurisdiction  of 
courts  of  equity,  it  is  vested,  by  the 
constitution  of  the  United  States, 
and  the  laws  of  Congress  in  pursu- 
ance thereof,  in  the  federal  courts,  to 
be  administered  by  the  circuit  courts 
in  controversies  arising  between  citi- 
zens of  different  states.     It  is  the  fa- 


miliar and  well-settled  doctrine  of 
this  court  that  this  jurisdiction  is 
independent  of  that  conferred  by  the 
states  upon  their  own  courts,  and 
cannot  be  affected  by  any  legislation 
except  that  of  the  United  States. 
.  ,  .  The  only  qualification  in  the 
application  of  this  principle  is  that 
the  courts  of  the  United  States,  in 
the  exercise  of  their  jurisdiction  over 
the  parties,  cannot  seize  or  control 
property  while  in  the  custody  of  a 
court  of  the  state."  Borer  v.  Chap- 
man, 119  U.  S.  587,  600,  7  Sup.  Ct. 
342,  348.  See,  in  addition  to  the 
cases  cited  infra,  in  this  note,  Green's 
Adm'r  v.  Creighton,  23  How.  90,  105, 
16  L.  Ed.  419,  423;  Payne  v.  Hook, 
7  Wall.  425,  430,  19  L.  Ed.  262  (a 
leading  case);  Hess  v.  Reynolds,  113 
U.  S.  78,  5  Sup.  Ct.  378;  Arrow- 
smith  V.  Gleason,  129  U.  S.  86.  98, 
100,  9  Sup.  Ct.  237,  241;  Clark  v. 
Bever,  139  U.  S.  96,  103,  11  Sup.  Ct. 
468,  470;  Johnson  v.  Powers.  139 
U.  S.  156,  157,  11  Sup.  Ct.  525;  Lau- 
rence v.  Nelson,  143  U.  S.  224,  12 
Sup.  Ct.  440,  443;  Hayes  v.  Pratt, 
147  U,  S.  557,  570,  13  Sup.  Ct.  503, 
507;  Ball  v.  Tompkins,  41  Fed.  486, 
489  (a  very  clear  statement) ; 
Semmes  v.  Whitney,  50  Fed.  666; 
Comstock  V.  Herron,  55  Fed.  803, 
811,  6  U.  S.  App.  626;  Martin  v. 
Fort,  83  Fed.  19,  23,  54  U.  S.  App. 
325;  Davis  v.  Davis,  89  Fed.  532, 
537;  Hampton  Lumber  Co.  v.  Ward, 
95  Fed.  3;  Hale  v.  Tyler,  115  Fed. 
833  (a  most  instructive  opinion). 

The  jurisdiction  does  not,  however, 
extend  to  matters  which  were  within 
the  exclusive  cognizance  of  the  Eng- 
lish ecclesiastical  courts,  such  as  the 
probate  of  wills,  the  appointment  of 


571 


JUDICIAL    INTERPRETATION    OF    JURISDICTION. 


294 


§  294.     Third  Principle:  Extent. — The  third  principle  re- 
lates to  the  extent  of  the  jurisdiction.     While  the  equitable 


administrators,  or  the  confirmation 
of  executors.  Ball  v.  Tompkins,  41 
Fed.  489;  Oakley  v.  Taylor,  64  Fed. 
245,  246. 

The  jurisdiction  has  been  exercised 
in  the  following  cases,  among  many 
others:  Suits  by  creditors  of  the 
decedent  to  establish  their  claims: 
Hagan  v.  Walker,  14  How.  29,  33; 
Green's  Adm'rs  v.  Creighton,  23  How. 
90;  Hess  v.  Eeynolds,  113  U.  S.  78, 
5  Sup.  Ct.  378;  Borer  v.  Chapman, 
119  U.  S.  587,  600,  7  Sup.  Ct.  342, 
348,  1  McCrary,  50,  51,  1  Fed.  274; 
Clark  V.  Bever,  139  U.  S.  96,  103,  11 
Sup.  Ct.  468,  470  (to  enforce  de- 
ceased's liability  as  stockholder) ; 
Covington  v.  Burnes,  1  Dill.  17,  Fed. 
Cas.  No.  3,291;  Fiske  v.  Gould,  11 
Biss.  297,  12  Fed.  372,  374  (to  reach 
partnership  assets  in  hands  of  repre- 
sentatives); Terry  v.  Bank  of  Cape 
Fear,  20  Fed.  773,  775;  Wiekham  v. 
Hull,  60  Fed.  326,  330  (to  establish 
claim  against  estate  in  possession  of 
state  probate  court,  but  not  to  en- 
force the  same);  Hale  v.  Tyler,  115 
Fed.  833  (to  set  aside  a  fraudulent 
conveyance  by  decedent.  See,  also, 
to  the  same  effect,  Connecticut  Mut. 
Life  Ins.  Co.  v.  Schurmeier,  117 
Minn.  473,  Ann.  Cas.  1913D,  462,  136 
N.  W.  1. 

The  jurisdiction  of  the  federal 
court  in  such  cases  cannot  be  ousted 
or  impaired  by  any  provision  of  a 
state  law  requiring  creditors  to  ap- 
pear before  a  state  court  and  present 
their  claims  within  a  limited  time: 
Chewett  v.  Moran,  17  Fed.  820  (bill 
to  subject  real  estate  in  the  hands 
of  heirs  to  the  payment  of  debts, 
after  administration  has  been 
closed) ;  Johnston  v.  Eoe,  1  McCrary, 
162,  1  Fed.  692  (same);  Hartman  v. 


Fishbeck,  18  Fed.  295,  and  note; 
Heaton  v.  Thatcher,  59  Fed.  731. 

See,  to  the  effect  that  jurisdiction 
will  not  be  taken  to  establish  a 
purely  legal  demand  in  equity  on  the 
mere  ground  that  the  demand  is 
against  the  estate  of  a  deceased  per- 
son. Walker  v.  Brown,  63  Fed.  204, 
208-212;  Bedford  Quarries  Co.  v. 
Thomlinson,  95  Fed.  208,  36  C.  C.  A, 
272;  Thiol  Detective  Service  Co.  v. 
McClure,  130  Fed.  55.  So,  the  peti- 
tion of  an  illegitimate  child  to  estab- 
lish his  statutory  right  to  share  in 
the  estate  presents  a  legal,  not  an 
equitable,  issue;  In  re  Foley,  70  Fed. 
390. 

Suit  for  recovery  of  a  legacy: 
Mayor  v.  Foulkrod,  4  Wash.  C.  C. 
356,  Fed.  Cas.  No.  9,341  (though  ac- 
tion at  law  provided  by  state  stat- 
ute); Pulliam  V.  Pulliam,  10  Fed. 
23,  30  (although  executor's  accounts 
have  been  settled  in  state  court) ; 
Brendel  v.  Charch,  82  Fed.  262.  263. 
See,  also,  Higgins  v.  Eaton,  183  Fed. 
388,  105  C.  C.  A.  608.  Suit  by  heirs 
to  declare  void  a  bequest  to  charity: 
Spencer  v.  Watkins,  169  Fed.  379,  94 
C.  C.  A.  659.  Suit  to  set  aside  a 
fraudulent  distribution  of  the  estate: 
Sullivan  v.  Andoe,  4  Hughes,  299,  6 
Fed.  641,  650;  as,  where  a  distributee 
is  fraudulently  induced  to  accept  less 
than  his  share  of  the  estate;  Payne 
V.  Hook,  7  Wall.  430;  Costello  v.  Cos- 
tello,  4  McCrary,  547,  14  Fed.  207, 
209  (suit  to  remove  cloud  from  title 
to  personal  property) ;  or  where  a 
widow  is  fraudulently  induced  to 
elect  to  take  a  small  annuity  under 
the  will,  instead  of  her  statutory  es- 
tate: Eddy  V.  Eddy,  168  Fed.  590,  93 
C.  C.  A.  586;  Cowen  v.  Adams.  78 
Fed.  536,  543,  47  U.  S.  App.  676;  or 


§294 


EQUITY   JUEISPEUDENCE. 


572 


jurisdiction  of  the  national  courts  is  derived  wholly  from 
the  United  States  constitution  and  statutes,  it  is  identical 


where  an  administrator,  by  fraud 
and  connivance,  gives  an  unwar- 
ranted preference  to  the  claims  of 
certain  creditors  to  the  exclusion  of 
others;  Dodd  v.  Ghiselin,  27  Fed. 
405,  410,  by  Brewer,  J.;  or  to  sur- 
charge and  correct  a  settlement  of 
accounts  by  administrators  which 
has  been  confirmed  by  decree  of  the 
probate  court;  Bertha  L.  &  M.  Co.  v. 
Vaughan,  88  Fed.  566,  571.  Suit 
against  an  executor  de  son  tort,  for 
accounting  and  distribution,  where 
there  has  been  no  administration 
upon  the  estate;  Eich  v.  Bray,  37 
Fed.  273,  2  L.  R.  A.  225.  Suit  for 
the  construction  of  a  probated  will: 
Toms  V.  Owen,  52  Fed.  417;  Colton  v. 
Colton,  127  U.  S.  301,  308,  8  Sup.  Ct. 
1164;  Wood  v.  Paine,  66  Fed.  807. 
Suit  by  ward  against  guardian,  set- 
ting aside  orders  of  probate  court: 
Hull  V.  Dills,  19  Fed.  658;  Arrow- 
smith  V.  Gleason.  129  U.  S.  86,  98, 
100,  9  Sup.  Ct.  237,  241.  See,  also, 
Pulver  V.  Leonard,  176  Fed.  586,  a 
suit  by  the  guardian  of  an  incompe- 
tent against  a  former  guardian. 

No  Original  Probate  Jurisdiction. 
"It  has  never  been  a  part  of  the 
function  of  courts  of  law  or  equity, 
by  a  proceeding  having  that  especial 
purpose  in  view,  either  to  establish 
or  reject  wills.  This  jurisdiction  was 
committed  exclusively  to  the  ecclesi- 
astical courts  in  England,  for  which 
are  substituted,  with  a  jurisdiction 
extending  to  probate  of  wills  of  real 
estate,  by  the  several  states  of  the 
Union,  courts  of  probate,  variously 
styled  probate,  surrogate,  or  orphans' 
courts,  not,  however,  exercising  com- 
mon-law or  chancery  cognizance;  and 
these  courts  have  always  enjoyed  this 
jurisdiction  exclusive  of  either  courts 


of  common  law  or  equity,  tending  a 
field  of  business  from  which  other 
courts  were  excluded  by  the  very  na- 
ture of  their  organization  and  pro- 
cedure." Oakley  v.  Taylor,  64  Fed. 
246.  The  United  States  courts  have 
no  jurisdiction,  by  virtue  of  their 
general  equity  powers,  to  establish  a 
will:  In  re  Frazer,  Fed.  Cas.  No. 
5,068;  In  re  Cilley,  58  Fed.  982,  984, 
985,  989;  Copeland  v.  Bruning,  72 
Fed.  5,  8;  In  re  Aspinwall's  Estate, 
83  Fed.  851;  Cilley  v.  Patton,  62 
Fed.  498;  nor  to  set  aside  a  will  or 
the  probate  thereof:  In  re  Broder- 
ick's  Will,  21  Wall.  503,  22  L.  Ed. 
599;  Fouverne  v.  New  Orleans,  18 
How.  470,  15  L.  Ed.  399;  Ellis  v. 
Davis,  109  U.  S.  498,  3  Sup.  Ct.  327, 
335,  affirming  4  Woods,  11,  Fed.  Cas. 
No.  4,402;  Oakley  v.  Taylor,  64  Fed. 
245;  Carran  v.  O'Calligan  (C.  C.  A.), 
125  Fed.  657,  reviewing  the  cases; 
also,  Stead  v.  Curtis,  191  Fed.  529. 
112  C.  C.  A.  463;  Goodrich  v.  Ferris, 
145  Fed.  844;  post,  §913;  contra, 
O'Callaghan  v.  O'Brien,  116  Fed.  934; 
nor  to  set  aside  letters  of  adminis- 
tration: Simmons  v.  Saul,  138  U.  S. 
439,  454,  460,  11  Sup.  Ct.  369,  376; 
nor  to  prevent  the  probate  of  a  will: 
Miller  v.  Weston,  199  Fed.  104,  119 
C.  C.  A.  358. 

When,  however,  jurisdiction  to  set 
aside  wills  or  the  probate  thereof  has 
been  vested  by  state  statute  in  courts 
of  equity,  the  federal  court  of  equity, 
sitting  in  the  state  where  such  stat- 
ute exists,  will  also  entertain  such 
jurisdiction  in  a  case  between  proper 
parties:  Gaines  v.  Fuentes,  92  U.  S. 
10,  21,  23  L.  Ed.  528;  Williams  v. 
Crabb,  117  Fed.  193,  59  L.  R.  A.  425, 
reviewing  the  authorities;  Richard- 
son  v.   Green,   61   Fed.   423,  429,    15 


573 


JUDICIAL    INTERPRETATION    OF    JURISDICTION. 


294 


or  equivalent  in  extent  with  that  possessed  by  the  English 
high  court  of  chancery  at  the  time  of  the  Revolution.     The 


U.  S.  App.  488,  9  C.  C.  A.  565,  159 
U.  S.  264,  15  Sup.  Ct.  1042;  but  see 
Eeed  v.  Reed,  31  Fed.  49,  53;  Oakley 
V.  Taylor,  64  Fed.  245  (holding  that 
the  statute  in  question  provided 
merely  a  remedy  by  appeal,  which 
could  not  be  enforced  by  a  federal 
court);  Sawyer  v.  White,  122  Fed. 
223  (statutory  remedy  of  a  legal  na- 
ture, enforced  by  federal  court  on 
its  law  side).  See,  also,  to  the  same 
effect,  O'Callaghan  v.  O'Brien,  199 
U.  S.  89,  50  L.  Ed.  101,  25  Sup.  Ct. 
727.  So  state  statutes  which  treat 
a  proceeding  to  establish  a  will,  in 
certain  cases,  as  one  of  equity  and 
not  of  probate  jurisdiction,  may  be 
enforced  in  a  federal  court  of  equity; 
see  Southworth  v.  Adams,  9  Biss. 
523,  524,  4  Fed.  1  (proceeding  to  es- 
tablish a  lost  will) ;  Brodhead  v. 
Shoemaker,  44  Fed.  518,  11  L.  B.  A. 
569  (proceeding  to  probate  will  in 
"solemn  form"). 

When  Estate  is  in  Custody  of  the 
State  Court. — The  limitation  of  the 
jurisdiction  in  administration  mat- 
ters consequent  upon  the  possession 
of  the  estate  by  the  probate  court 
presents  some  questions  of  difficulty. 
In  Byers  v.  McAuley,  149  U.  S.  616- 
623,  13  Sup.  Ct.  908-911,  many  of 
the  previous  cases  in  the  supreme 
court  are  reviewed  by  Mr.  Justice 
Brewer,  who  says,  in  part:  "In  or- 
der to  pave  the  way  to  a  clear  under- 
standing of  this  question,  it  may  be 
well  to  state  some  general  proposi- 
tions which  have  become  fully  set- 
tled by  the  decisions  of  this  court; 
and,  first,  it  is  a  rule  of  general  ap- 
plication that,  where  property  is  in 
the  actual  possession  of  one  court  of 
competent  jurisdiction,  such  posses- 
sion cannot  be  disturbed  by  process 


out  of  another  court.  .  .  .  Sec- 
ondly, an  administrator  appointed  by 
a  state  court  is  an  officer  of  that 
court.  His  possession  of  the  dece- 
dent's property  is  a  possession  taken 
in  obedience  to  the  orders  of  that 
court.  It  is  the  possession  of  the 
court,  and  it  is  a  possession  which 
cannot  be  disturbed  by  any  other 
court."  The  result  of  the  discussion 
is  thus  summed  up  by  the  learned 
justice:  "A  citizen  of  another  state 
may  establish  a  debt  against  the  es- 
tate (Yonley  v.  Lavender,  21  Wall. 
276;  Hess  v.  Reynolds,  113  U.  S.  73, 
5  Sup.  Ct.  377);  but  the  debt  thus 
established  must  take  its  place  and 
share  of  the  estate  as  administered 
by  the  probate  court,  and  it  cannot 
be  enforced  by  process  directly 
against  the  property  of  the  decedent 
(Yonley  v.  Lavender,  supra).  In 
like  manner,  a  distributee,  citizen  of 
another  state,  may  establish  his 
right  to  a  share  in  the  estate,  and  en- 
force such  adjudication  against  the 
administrator  personally,  or  his  sure- 
ties (Payne  v.  Hook,  7  Wall.  425), 
or  against  any  other  parties  subject 
to  liability  (Borer  v.  Chapman,  119 
U.  S.  587,  7  Sup.  Ct.  342),  or  in 
any  other  way  which  does  not  dis- 
turb the  possession  of  the  property 
by  the  state  courts."  In  support  of 
the  general  principle  of  Byers  v.  Mc- 
Auley, see  Northrup  v.  Browne,  204 
Fed.  224,  122  C.  C.  A.  496. 

The  following  acts  have  been  held 
to  constitute  an  interference  on  the 
part  of  the  federal  court  with  prop- 
erty in  the  possession  of  the  probate 
court:  An  execution  levied  on  such 
property:  Williams  v.  Benedict,  8 
How.  107,  112;  Yonley  v.  Lavender, 
21  Wall.  276;   Wickham  v.   Hull.  60 


§294 


EQUITY    JURISPRUDENCE, 


574 


judicial  functions  and  powers  of  the  English  court  of  chan- 
cery are  held  to  have  been  conferred  en  masse  upon  the 
national  judiciary;  but  not  the  peculiar  administrative 
functions  held  by  the  chancellor  as  representative  of  the 


Fed.  326,  330;  appointing  a  receiver 
to  displace  the  executor:  Haines  v. 
Carpenter,  1  "Woods,  269,  270,  Fed. 
Cas.  No.  5,905;  Lant  v.  Manley,  71 
Fed.  7,  12;  Johnson  v.  Ford,  109  Fed. 
501;  appointing  a  receiver,  where  a 
petition  for  the  appointment  of  ad- 
ministrators has  already  been  filed  in 
the  state  court:  Smith  v.  Jennings, 
238  Fed.  48,  151  C.  C.  A.  124;  com- 
pelling an  executor  to  turn  over  cer- 
tain property  to  an  administrator: 
Watkins  v.  Eaton,  183  Fed.  384,  105 
C.  C.  A.  604;  compelling  a  surviving 
partner,  who  was  one  of  the  execu- 
tors of  the  deceased,  to  account  and 
pay  the  amount  found  due  to  the 
executors  for  distribution,  the  pro- 
bate court  having  full  jurisdiction  to 
compel  such  accounting:  Moore  v. 
Fidelity  Trust  Co.,  138  Fed.  1,  1008, 
70  C.  C.  A.  663,  affirming  134  Fed. 
4S9;  adjudging  that  certain  claims 
should  be  placed  on  equality  with 
others  which,  under  the  state  law, 
were  entitled  to  a  preference:  Dodd 
V.  Ghiselin,  27  Fed.  405,  407-410 
(Brewer,  J.) ;  setting  aside  a  sale 
of  trust  property  comprising  the  re- 
siduary estate,  while  the  estate  is  in 
the  process  of  administration,  and 
before  the  executors  have  rendered 
any  account:  Jordan  v.  Taylor,  98 
Fed.  643.  See,  also,  In  re  Foley,  80 
Fed.  951. 

The  following  acts  have  been  held 
not  to  constitute  an  interference: 
Establishing  a  debt  against  the  es- 
tate: Hess  V.  Eeynolds,  113  U.  S. 
78,  5  Sup.  Ct.  378;  Black  v.  Scott, 
9  Fed.  186,  191;  Wickham  v.  Hull, 
60   Fed.  326,  330;   Connecticut  Mut. 


Life  Ins.  Co.  v.  Schurmeier,  117 
Minn.  473,  Ann.  Cas.  1913D,  462,  136 
N.  W.  1,  In  Hess  v.  Eeynolds  the 
court  says,  by  Miller,  J.:  "It  may  be 
convenient  that  all  debts  to  be  paid 
out  of  the  assets  of  a  deceased  man's 
estate  shall  be  established  in  the 
court  to  which  the  law  of  the  domi- 
cile has  confided  the  general  adminis- 
tration of  these  assets.  And  the 
courts  of  the  United  States  will  pay 
respect  to  this  principle  in  the  execu- 
tion of  the  process  enforcing  their 
judgments  out  of  these  assets,  so  far 
as  the  demands  of  justice  require. 
But  neither  the  principle  of  conveni- 
ence nor  the  statutes  of  a  state  can 
deprive  them  of  jurisdiction  to  hear 
and  determine  a  controversy  between 
citizens  of  difi'erent  states  when  such 
a  controversy  is  distinctly  presented, 
because  the  judgment  may  affect  the 
administration  or  distribution  in  an- 
other forum  of  the  assets  of  the  de- 
cedent's estate."  It  appears  that  a 
lien  upon  specific  property  entitling 
the  lien-holder  to  a  special  remedy 
is  not  impaired  by  the  death  of  the 
owner,  and  such  special  remedy  may 
be  applied  in  proceedings  against  his 
executor  or  administrator  in  the  fed- 
eral courts:  German  Sav,  &  Loan 
Soc.  V.  Cannon,  65  Fed.  542,  545; 
Erwin  v.  Lowry,  7  How.  172,  181; 
and  see  Lant  v.  Manley,  75  Fed.  627, 
634,  43  U.  S.  App.  623.  When  suits 
by  distributees  do  not  constitute  an 
interference:  see  Payne  v.  Hook, 
supra;  Byers  v.  McAuley,  supra; 
Brcndel  v.  Charch,  82  Fed.  262; 
also.  Waterman  v.  Canal-Louisiana 
Bank  &  Trust  Co.,  215  U.  S.  33,  54 


575 


JUDICIAL   INTERPRETATION    OF    JURISDICTION. 


294 


crown  in  its  character  of  parens  patricE.  These  latter  func- 
tions of  the  English  chancellor  have  not  been  granted  to 
the  United  States  courts,  but  are  given  to  the  several  states, 
and  are  exercised  either  by  the  state  legislatures  or  by  the 


L.  Ed.  80,  30  Sup.  Ct.  10  (to  establish 
plaintiff's  interest  in  an  alleged 
lapsed  legacy  and  in  the  residue  of 
the  estate);  McClellan  v.  Garland, 
217  U.  S.  268,  54  L.  Ed.  762,  30  Sup. 
Ct.  501,  187  Fed.  915,  110  C.  C.  A. 
49  (to  have  plaintiff  adjudicated  heir 
of  decedent,  whose  property  has  been 
administered,  where  all  debts  have 
been  paid  and  the  net  proceeds  were 
held  by  the  administrator) ;  Eddy  v. 
Eddy,  168  Fed.  590,  93  C.  C.  A.  586 
(to  set  aside  widow's  election  as  pro- 
cured by  fraud,  and  to  take  an  ac- 
count to  determine  the  amount  she 
was  entitled  to  receive  under  the 
statutes  of  descent  and  distribu- 
tion); American  Baptist  Home  Mis- 
sion Society  v.  Stewart,  192  Fed. 
976.  Establishing  a  lien  on  the  in- 
terests of  heirs  at  law  in  an  estate 
in  the  hands  of  an  administrator:  In- 
gersoll  v.  Coram,  127  Fed.  418;  In- 
gersoll  V.  Coram,  211  U.  S,  335,  53 
L,  Ed.  208,  29  Sup.  Ct.  92.  Enfor- 
cing an  assignment  of  a  distributive 
share,  the  validity  of  which  is  con- 
troverted: Gatzert  v.  Lucey,  218  Fed. 
395. 

In  the  following  cases  the  property 
was  held  not  to  be  in  the  custody  of 
the  probate  court,  and  the  limitation 
of  the  jurisdiction  of  the  federal 
court,  therefore,  did  not  apply: 
Herschberger  v.  Blewett,  55  Fed. 
170;  Briggs  v.  Stroud,  58  Fed.  717, 
720;  where  the  assets  have  been  dis- 
tributed; Borer  v.  Chapman,  119 
U.  S.  587,  600,  7  Sup.  Ct.  342,  348; 
where  they  are  in  the  hands  of  the 
committee  of  a  lunatic;  Sullivan  v. 
Andoe,  4   Hughes,   299,   6   Fed.   641, 


650;  or  of  an  executor  in  his  capa- 
city as  trustee;  Ball  v.  Tompkins, 
41  Fed.  489;  Herron  v.  Comstock,  139 
Fed.  370,  71  C.  C.  A.  466  (where 
nothing  remains  but  the  management 
and  disposition  of  trust  real  estate, 
the  federal  court  has  jurisdiction  to 
decree  an  accounting  and  final  dis- 
tribution and  settlement  of  the 
trust) ;  where  real  property  fraudu- 
lently conveyed  by  the  decedent  is 
sought  to  be  reached,  and  the  pro- 
bate court,  though  empowered  by 
statute  to  take  possession  of  it,  baa 
not  done  so;  Hale  v.  Tyler,  115  Fed. 
833  (examining  the  cases  with  great 
thoroughness).  In  Ball  v.  Tompkins, 
supra,  the  court  says,  at  page  490: 
"The  possession  contemplated  as 
sufficient  to  make  it  exclusive  is  that 
which  the  court  by  its  process,  or 
some  similar  mode,  has,  either  for  the 
direct  purpose  of  the  proceeding,  or 
for  some  other  purpose  ancillary  to 
the  main  object,  drawn  into  its  do- 
minion and  custody  some  thing. 
That  thing  may  be  corporeal  or  in- 
corporeal,— a  substance  or  a  mere 
right.  But  a  controversy,  a  ques- 
tion, an  inquiry,  is  not  such  a  thing. 
These  may  be  the  subject-matter  of 
jurisdiction  in  a  pending  cause, 
which  often  proceeds,  from  the  be- 
ginning to  the  judgment,  without 
the  court's  having  taken  actual  do- 
minion of  anything.  But  there  is 
no  exclusive  jurisdiction  over  such 
a  matter.  The  result  may  be  a  judg- 
ment which  will  establish  a  right, 
but  the  court  has  not  had  any  pos- 


§  295  EQUITY   JURISPBUDENCE.  576 

state  tribunals.  The  United  States  supreme  court  has  fre- 
quently laid  down  and  acted  upon  this  principle  in  decid- 
ing cases  brought  for  the  purpose  of  enforcing  charitable 
trusts.!  ^ 

§  295.  Fourth  Principle:  Inadequacy  of  Legal  Remedies. 
The  fourth  principle  also  relates  to  the  extent  of  the  equi- 
table jurisdiction,  as  that  is  affected  by  the  most  important 
provision  of  the  statute. ^  In  the  judicial  interpretation 
of  this  clause,  it  has  been  well  settled  that  the  section  of 
the  statute  is  merely  declaratory  of  a  familiar  doctrine 

§  294,  1  Bodley  v.  Taylor,  5  Cranch,  191,  221,  222 ;  Fontain  v.  Ravenel, 
17  How.  369,  384;  Canal  Co.  v.  Gordon,  6  Wall.  561,  568;  Case  of  Broder- 
ick's  Will,  21  Wall.  503;  Noonan  v.  Lee,  2  Black,  499,  509;  Loring  v. 
Marsh,  2  Cliff.  469,  493;  Livingston  v.  Van  Ingen,  1  Paine,  45.  In  Fon- 
tain V.  Ravenel,  17  How,  369,  a  suit  to  establish  a  charitable  trust,  Mr. 
Justice  McLean  stated  the  doctrine  as  follows:  "The  courts  of  the  United 
States  cannot  exercise  any  equity  powers  except  those  conferred  by  acts  of 
Congress,  and  those  judicial  powers  which  the  high  court  of  chancery  in 
England,  acting  under  its  judicial  capacity  as  a  court  of  equity,  possessed 
and  exercised  at  the  time  of  the  formation  of  the  constitution  of  the 
United  States.  Powers  not  judicial,  exercised  by  the  chancellor  merely  as 
the  representative  of  the  sovereign,  and  by  virtue  of  the  king's  preroga- 
tive as  parens  patrice,  are  not  possessed  by  the  United  States  circuit 
courts."  In  Noonan  v.  Lee,  2  Black,  499,  509,  Swayne,  J.,  said:  "Equity 
jurisdiction  of  the  courts  of  the  United  States  is  derived  from  the  con- 
stitution and  laws  of  the  United  States.  Their  powers  and  rules  of  deci- 
sion are  the  same  in  all  the  states.  Their  practice  is  regulated  by 
themselves  and  by  rules  established  by  the  supreme  court.  In  all  these 
respects  they  are  unaffected  by  state  legislation;"  citing  Neves  v.  Scott,  13 
How.  270;  Boyle  v.  Turner,  6  Pet.  658;  Robinson  v.  Campbell,  3  Wheat. 
323. 

§  295,  1 1  refer  to  the  United  States  Revised  Statutes,  section  723, 
being  the  same  as  section  16  of  the  Judiciary  Act  of  1789,  quoted  ante, 
in  note  under  section  312. 

§  294,      (a)     See,     also,     Mormon  to  cancel  a  patent  for  fraud  will  not 

Church  V.  United  States,  136  U.  S.  1;  be  entertained,  since  in  England  the 

King  v.  McLean   Asylum  of  Massa-  power  to  cancel  a  patent  was  in  the 

chusetts    General   Hospital,   64   Fed.  nature      of      a     royal     prerogative; 

331,  352,    26  L.  E.  A.  795,  21  U.  S.  United  States  v.  American  Bell  Tele- 

App.  481   (C.  C.  A.).     In  absence  of  phone  Co.,  32  Fed.  591,  605,  606. 
statute,  a  bill  bv  the  United  States 


577  JUDICIAL    INTERPRETATION    OF    JURISDICTION.  §  296 

belonging  to  the  general  system  of  equity  jurisdiction  and 
jurisprudence.  It  does  not  take  away  or  abridge  the  juris- 
diction which  is  affirmatively  granted,  nor  deprive  the 
United  States  courts  of  any  part  of  the  field  of  powers 
occupied  by  the  English  court  of  chancery  so  far  as  the 
functions  of  that  tribunal  are  judicial.  In  short,  this  sec- 
tion does  not  substantially  affect  the  equitable  jurisdiction 
of  the  national  courts;  their  powers  would  have  been  the 
same,  and  subject  to  the  same  limits,  if  the  provision  had 
not  been  enacted.^ 

§  296.  Illustrations. — The  four  foregoing  principles  may 
be  justly  regarded,  I  think,  as  the  very  foundations  of  the 
equitable  jurisdiction  of  the  United  States  courts.  They 
give  it  whatever  peculiar  character  it  possesses  growing- 
out  of  the  double  organization  of  the  national  and  state 
governments,  and  they  clearly  distinguish  it  from  the  juris- 
diction possessed  by  any  state  tribunals.  In  the  practical 
administration  of  their  equitable  powers,  the  national  judi- 

§  295,  2  Boyee's  Executors  v.  Grundy,  3  Pet.  210,  215 ;  Baker  v.  Biddle, 
1  Bald.  394,  403;  Barber  v.  Barber,  21  How.  582,  591;  Hunt  v.  Dan- 
forth's  Ex'rs,  2  Curt.  592,  603 ;  Bunce  v.  Gallagher,  5  Blatchf .  481,  487. 
The  doctrine  of  the  text  was  clearly  stated  in  Boyee's  Executors  v.  Grundy, 
3  Pet.  210,  215,  by  Johnson,  J.,  and  has  been  repeated  by  the  subsequent 
cases:  "This  court  has  been  often  called  upon  to  consider  section  16  of  the 
Judiciary  Act  of  1789,  and  as  often,  either  expressly  or  by  the  course 
of  its  decisions,  has  held  that  it  is  merely  declaratory,  making  no  altera- 
tion whatsoever  in  the  rules  of  equity  on  the  subject  of  legal  remedy.  It 
is  not  enough  that  there  is  a  remedy  at  law ;  it  must  be  plain  and  adequate, 
or  in  other  words,  as  practical  and  efficient  to  the  ends  of  justice  and  its 
prompt  administration  as  the  remedy  in  equity."  * 

§295,  (a.)  In  the  recent  case  of  existed  when  the  .Judiciary  Act  of 
McConehay  v.  Wright,  121  U.  S.  20',  1789  was  adopted,  unless  subse- 
the  supreme  court  of  the  United  quently  changed  by  Congress,  and  is 
States,  again  laid  down  the  rule  not  the  existing  remedy  in  a  state  or 
that  the  test  of  the  equity  jurisdic-  territory  by  virtue  of  local  legisla- 
tion of  the  courts  of  the  United  tion.  See,  also,  Payne  v.  Kansas  & 
States,  so  far  as  the  same  was  de-  A.  Val.  R.  R.  Co.,  46  Fed.  546;  Rich- 
termined  by  the  adequacy  of  the  ardson  v.  Pennsylvania  Coal  Co.,  203 
remedy  at  law,  is  the  remedy  which  Fed.  743. 
1—37 


§  296  EQUITY    JURISPRUDENCE.  578 

ciary  have  constantly  affirmed  and  steadily  adhered  to  the 
doctrine  in  its  negative  form,  that  the  equitable  jurisdic- 
tion does  not  exist,  or  will  not  be  exercised,  in  any  case 
or  under  any  circumstances  where  there  is  an  adequate^ 
complete,  and  certain  remedy  at  law,  sufficient  to  meet  all 
the  demands  of  justice.^  ^  I  have  collected  and  placed  in 
the  foot-note  a  number  of  examples  which  will  sufficiently 
illustrate  the  uniformity  and  consistency  with  which  the 
United  States  judiciary  have  applied  this  negative  rule 
under  a  great  variety  of  circumstances.^ 

§  296,  1  Thompson  v.  Railroad  Co.,  6  Wall.  134,  137;  Parker  v.  Winni- 
piseogee,  etc.,  Co.,  2  Black,  545,  550;  Knox  v.  Smith,  4  How.  298,  316; 
Wright  V.  Ellison,  1  Wall.  16,  22;  Oelriehs  v.  Spain,  15  Wall.  211;  Lewis 
V.  Cocks,  23  Wall.  466,  470;  Hungerford  v.  Sigerson,  20  How.  156;  Hipp 
V.  Babin,  19  How.  271;  Baker  v.  Biddle,  1  Bald.  394,  405;  Blakeley  v. 
Biscoe,  1  Hempst.  114,  115;  United  States  v.  Meyers,  2  Brock.  516; 
Andrews  v.  Solomon,  1  Pet.  C.  C.  356;  Shapley  v.  Rangeley,  1  Wood.  & 
M.  213,  216,  2  Ware,  242;  Pierpont  v.  Fowle,  2  Wood.  &  M.  23;  Foster 
V.  Swasey,  2  Wood.  &  M.  217. 

§  296,  2  It  has  thus  been  decided  that  the  jurisdiction,  if  concurrent, 
does  not  exist,  and  if  exclusive,  will  not  be  exercised,  in  the  following 
eases:  Not  to  try  the  mere  legal  title  to  lands,  or  to  recover  possession 
of  lands  when  only  the  legal  title  is  disputed:  Mezes  v.  Greer,  1  McAll. 
401,  402 ;  •  Hipp  v.  Babin,  19  How.  271 ;  Lewis  v.  Cocks,  23  Wall.  466, 
470 :  *•  nor  for  a  breach  of  a  simple  contract  of  agency :  Blakeley  v.  Biscoe, 
1  Hempst.  114,  115;  nor  of  suit  by  principal  against  his  agent  to  recover 
for  losses  occasioned  by  the  latter's  negligence  or  misconduct:  Vose  v. 
Philbrook,  3  Story,  335,  344,  345;  nor  of  suit  by  insurance  companies 
to  cancel  a  fire  policy,  and  enjoin  action  at  law  thereon,  on  the  ground 
of  fraudulent  representations  in  procuring  the  same,  where  the  suit  was 
brought  after  a  loss :  Home  Ins.  Co.  v.  Stanchfield,  1  Dill.  424,  429,  431- 
438,  2  Abb.  1 ;  *'  whether  the  suit  for  a  discovery  has  been  abrogated  by 
statutes  making  parties  liable  to  be  called  as  witnesses  for  their  adver- 

§  296,  (a)  See,  also,  the  following  §  296,  (b)  See,  also,  Killian  v.  Eb- 

leading     cases:     Insurance     Co.     v.  binghaus,  110  U.  S.  568. 

Bailey,  13  Wall.  616,  620,  20  L.  Ed.  §  296,   (c)   See,  also,  Insurance  Co. 

501;    Grand    Chute    v.    Winegar,    15  v.   Bailey,   13   Wall.   616,   20   L.   Ed. 

Wall.  373,  21  L.  Ed.  170;  Buzard  v.  501.     If   a  defendant,   an   insurance 

Houston,  119  U.  S.  347,  351,  30  L.  Ed.  company,  has  an  adequate  remedy  at 

451,  4   Sup.   Ct.   249;   Whitehead   v.  law  by  defense   to   an  action   on   a 

Shattuck,  138    U.    S.  151,  34  L.  Ed,  policy,  and  a  right  to  a  removal  of 

873,  11  Sup.  Ct.  276.  the  action  from  a  state  to  a  federal 


579  JUDICIAL   INTERPEETATION    OF    JURISDICTION.  §  297 

§297.  Effect  of  State  Laws.— On  the  other  hand,  the 
affirmative  form  of  the  rule  has  also  been  uniformly  as- 
serted and  maintained,  that  the  equitable  jurisdiction  exists 
and  will  be  exercised  in  all  cases,  and  under  all  circum- 
stances, where  the  remedy  at  law  is  not  adequate,  complete, 
and  certain,  so  as  to  meet  all  the  requirements  of  justice. 
That  there  is  a  legal  remedy  is  not  enough;  such  remedy, 
in  order  to  oust  or  prevent  the  equitable  jurisdiction,  must 

saries:  Home  Ins.  Co.  v.  Stanehfield,  1  Dill.  424,  429,  431^38,  2  Abb.  1; 
when  suit  will  not  be  sustained  to  set  aside  a  sale  on  ground  of  fraud: 
Andrews  v.  Solomon,  1  Pet.  C.  C.  356;  Foster  v.  Swasey,  2  Wood.  &  M. 
217;  nor  to  recover  on  contract  which  has  been  entirely  performed,  ex- 
cejDt  the  payment  of  the  money  due  thereon;  and  equity  has  no  jurisdic- 
tion to  compel  municipal  officers  to  levy  a  tax  in  order  to  provide  a  fund 
for  the  payment  of  such  a  contract:  Heine  v.  Loan  Commissioners,  19 
Wall.  655,  1  Woods,  246;  nor  of  a  suit  brought  to  enforce  a  decree  in 
equity  for  the  payment  of  money  alone:  Telford  v.  Oakley,  1  Hempst. 
197;  nor  of  a  suit  to  declai'e  the  future  rights  which  may  arise  under  a 
will :  Cross  v.  De  Valle,  1  Wall.  1,  1  Cliff.  282 ;  nor  of  a  suit  for  a  divorce 
or  for  alimony:  Barber  v.  Barber,  21  How.  582,  584;  nor  of  a  suit  to 
establish  the  probate  of  a  will,  nor  to  set  aside  the  probate  of  a  will  on 
any  gi'ound:  Fouverne  v.  New  Orleans,  18  How.  470,  473:  nor  of  a  suit 
to  set  aside  a  will  or  the  probate  thereof,  on  the  gi'ound  of  forgery  or  of 
fraud;  nor  to  declare  the  executor,  or  legatee,  or  devisee  in  such  a  will 
a  trustee:  Case  of  Broderick's  Will,  21  Wall.  503;  nor  to  maintain  the 
"jDroceedings  supplementary  to  execution,"  authorized  by  a  state  code  of 
procedure,  the  proper  equitable  remedy  being  a  "creditor's  suit" :  Byrd 
v.  Badger,  1  McAU.  443,  444-446;  when  the  jurisdiction  will  not  be  exer- 
cised in  a  case  of  private  nuisance :  Parker  v.  Winnipiseogee  Co.,  2  Black, 
545,  550 ;  nor  to  enjoin  any  suit  pending  in  a  state  court :  Rogers  v.  Cin- 
cinnati, 5  McLean,  337;  nor  to  enjoin  a  sheriff  under  ordinary  circum- 
stances from  levying  on  and  selling,  under  an  execution  against  a  third 
party,  any  property  in  which  the  plaintiff  is  interested,  an  action  at  law 
for  damages  being  ample  remedy:  Knox  v.  Smith,  4  How.  29S,  316;  nor 
to  enforce  a  forfeiture :  Horsburg  v.  Baker,  1  Pet.  232,  236 ;  for  limitations 
upon  the  jurisdiction  of  the  national  courts  in  enforcing  vague  and  uncer- 
tain charities:  See  Fontain  v.  Ravenel,  17  How.  369,  384. 

court  by   reason   of   diverse   citizen-  quate   as   to   afford   an   occasion   for 

ship,  the  fact  that  such  removal  may  the  exercise,  by  a  federal  court,  of 

subject  it  to  a  revocation  of  its  li-  equitable  jurisdiction   to   cancel   the 

cense  to  do  business  in  the  state  does  policy;  Cable  v.  United  States  Life 

not  render  its  legal  remedy  so  inade-  Ins.  Co.  (U.  S.),  24  Sup.  Ct.  74. 


§  297  EQUITY   JUKISPRUDENCE.  580 

be  in  all  respects  as  satisfactory  as  the  relief  furnished  by 
a  court  of  equity. ^  ^  Not  intending  to  re-examine  the  ques- 
tions concerning  jurisdiction  which  have  been  discussed  in 
the  preceding  chapters,  I  have  merely  collected  and  placed 
in  the  foot-note  a  few  decided  cases  as  examples,  which  will 
illustrate  the  manner  in  which  the  United  States  courts 
have  applied  the  foregoing  affirmative  rule,  and  have  exer- 
cised their  equitable  powers  under  a  variety  of  circum- 
stances.2     In  order  to  prevent  a  misconception  of  the  fore- 

§  297,  1  Pratt  v.  Northam,  5  Mason,  95,  105 ;  Baker  v.  Biddle,  1  Bald. 
394,  403^11 ;  United  States  v.  Meyers,  2  Brock.  516.  In  the  case  of  Baker 
V.  Biddle,  1  Bald.  394,  405,  Baldwin,  J.,  said :  "It  follows  that  wherever  a 
court  of  law  is  competent  to  take  cognizance  of  a  right,  and  has  power  to 
proceed  to  a  final  judgment  which  affords  a  remedy  plain,  adequate,  and 
complete,  without  the  aid  of  a  court  of  equity,  the  plaintiff  must  proceed 
at  law,  because  the  defendant  has  a  constitutional  right  of  trial  by  jury. 
If  the  right  is  only  an  equitable  one,  or  if  the  right  being  legal,  the  remedy 
is  only  equitable,  or  both  legal  and  equitable,  partaking  of  the  character 
of  both,  and  a  court  of  law  is  unable  to  afford  a  remedy  according  to  its 
old  and  settled  proceedings  commensurate  with  the  right,  then  the  suit 
for  its  assertion  may  be  in  equity.  .  .  .  The  tests  of  the  relative  jurisdic- 
tion over  suits  at  law  and  in  equity  are, — 1.  The  subject-matter;  2.  The 
relief;  3.  Its  application;  4.  The  competency  of  a  court  of  law  to  afford 
it."  The  judgment  of  Mr.  Justice  Baldwin  in  this  case  is,  in  my  opinion, 
one  of  the  ablest,  clearest,  and  most  accurate  statements  of  the  true  doc- 
trines concerning  the  equitable  jurisdiction  to  be  found  in  the  whole  range 
of  reports,  English  and  American. 

§  297,  2  The  equitable  jurisdiction  has  been  held  to  exist  and  has  been 
exercised  in  the  following  cases,  on  the  ground  that  the  legal  remedy  is 
inadequate:  On  behalf  of  the  one  having  the  equitable  estate  in  land,  to 
compel  a  conveyance  to  him  of  the  legal  estate:  Bodley  v.  Taylor,  5 
Crancb  191,  221,  222 ;  in  "creditors'  suits"  and  suits  similar  thereto : 
Dunphy  v.  Kleinsmith,  11  Wall.  610,  614;  Lorman  v.  Clark,  2  McLean, 

§297,    (a)    Cited,  Mann  v.  Appel,  Wall.  466,  470,  23  L.  Ed.  70;  Drexel 

31   Fed.   378,    383,    a   creditors'    bill.  v.    Berney,    122    U.    S.    241,    252,    30 

See,  also,  the  following  leading  cases  L.  Ed.  1219,  7  Sup.  Ct.  1200;   Allen 

enunciating   this   principle:    Boyce's  v.    Hanks,    136    U.    S.    300,    311,    34 

Ex'rs  v.  Grundy,  3  Pet.  210,  215,  9  L.  Ed.  414,  10  Sup.  Ct.  961;  Kilbourn 

L.  Ed.  127;  Watson  v.  Sutherland,  5  v.  Sunderland,  130  U.  S.  505,  514,  9 

Wall.   74,   78,   18  L.  Ed.   580;  Insur-  Sup.   Ct.   594;   Rich  v.  Braxton,   158 

ance  Co.  v.  Bailey,  13  W^all.  616,  620,  U.  S.  375,  406,  39  L.  Ed.  1022,  15  Sup. 

20  L.   Ed.   501;   Lewis   v.   Cocks,   23  Ct.  1006. 


581  JUDICIAL   INTERPRETATION    OF    JURISDICTION.  §  297 

going  rules  concerning  the  equitable  jurisdiction  of  the 
national  courts,  there  is  one  limitation  which  must  be  con- 
stantly borne  in  mind.  Since  the  original  jurisdiction  of 
the  United  States  courts — especia-lly  of  the  circuit  courts — 
in  large  measure  depends  upon  the  state  citizenship  of  the 
litigant  parties  as  its  sole  basis,  it  follows  that  in  solne 
cases  of  ordinary  controversies — in  all  those  which  do  not 
directly  arise  under  statutes  of  Congress  or  provisions  of 
the  United  States  constitution — the  subject-matter  of  the 

568;  Bean  v.  Smith,  2  Mason,  252,  267,  268;  in  suit  to  foreclose  a  mort- 
gage, even  in  a  state  where  the  common-law  mortgage  is  not  known : 
Walker  v.  Dreville,  12  Wall.  440;  in  a  suit  to  enforce  a  lien  created  by 
statute,  and  to  enforce  liens  generally:  Canal  Co.  v.  Gordon,  6  Wall.  5G1, 
568;  Heine  v.  Loan  Com'rs,  19  Wall.  655,  1  Woods,  246;*  to  remove  a 
cloud  from  title :  Loring  v.  Dorner,  1  McAU.  360,  362-365 ;  in  an  "admin- 
istration suit":  Pratt  v.  Northam,  5  Mason,  95,  105;  to  enforce  charitable 
trusts,  so  far  as  the  same  can  be  done  by  judicial  action :  Fontain  v. 
Ravenel,  17  How.  369,  384;  to  regulate  and  control  one  railroad  company 
in  the  construction  of  its  tracks  across  those  of  another  company,  where 
the  state  legislation  has  not  prescribed  any  manner:  Chicago  &  N.  W. 
R.  R.  V.  Chicago  &  Pac.  R.  R.,  6  Biss.  219,  221,  222;  to  carry  into  full 
effect  the  provisions  of  a  bankrupt  act  passed  by  Congi-ess,  and  in  mat- 
ters of  accounting  generally:  Mitchell  v.  Great  Works,  etc.,  Mfg.  Co.,  2 
Story,  648;  in  cases  of  fraud,  misrepresentation,  and  concealment,  to 
give  the  relief  of  cancellation,  etc. :  Jones  v.  Bolles,  9  Wall.  364,  369 ;  in 
suit  by  insurance  company  brought  before  a  loss  to  cancel  a  fire  policy 
on  the  ground  of  fraud  and  its  procurement:  Home  Ins.  Co.  v.  Stanch- 
field,  1  Dill.  424,  429,  431-438,  2  Abb.  1;  to  set  aside  and  cancel  a  written 
agreement  on  the  ground  of  fraud:  Boyce's  Ex'rs  v.  Grundy,  3  Pet.  210, 
215;  when  equity  can  give  relief  against  a  forged  or  fraudulent  will 
which  has  been  admitted  to  probate,  to  parties  entitled  to  the  estate: 
Case  of  Broderick's  Will,  21  Wall.  503;  to  set  aside  a  forged  deed  of 
land  at  the  suit  of  the  pretended  grantor,  although  the  deed  is  absolutely 
vojd:  Bunce  v.  Gallagher,  5  Blatchf.  481,  487;  citing  Peirsoll  v.  Elliott, 
6  Pet.  95;  Hamilton  v.  Cummings,  1  Johns.  Ch.  517;  in  a  suit  for  a  dis- 
covery and  an  accounting:  Baker  v.  Biddle,  1  Bald.  394.  403-411;  to  re- 
cover amount  due  on  a  decree  for  alimony  rendered  by  a  state  court  in 

§  297,  (b)  This  note  and  paragraph  334,  holding  that  the  enforcement  of 

of  the  text  are  cited  in  Hibernia  S.  statutory  liens  is  a  matter  of  equity 

&   L.   Soc.   V.   London    &   Lancashire  jurisdiction. 
Fire  Ins.  Co.,   138   Cal.  257,  71  Pac. 


§  297  EQUITY   JURISPRUDENCE.  582 

suit,  the  primary  rights,  interests,  or  estates  to  be  main- 
tained and  protected,  are  created  and  regulated  by  state 
laws  alone.  While,  therefore,  it  is  correctly  held  that  the 
equitable  jurisdiction  of  the  national  courts,  their  power 
to  entertain  and  decide  equitable  suits  and  to  grant  the 
remedies  properly  belonging  to  a  court  of  equity,  is  wholly 
.derived  from  the  constitution  and  laws  of  the  United  States, 
and  is  utterly  unabridged  by  any  state  legislation,  yet,  on 
the  other  hand,  the  primary  rights,  interests,  and  estates 
which  are  dealt  with  in  such  suits  and  are  protected  by 
such  remedies  are  within  the  scope  of  state  authority,  and 
may  be  altered,  enlarged,  or  restricted  by  state  laws.^  ^ 
The  equitable  jurisdiction  of  the  national  courts  is  not 
directly  affected  by  the  state  statutes,  but  what  may  be 

a  suit  for  divorce,  where  the  husband  had  removed  to  another  state: 
Barber  v.  Barber,  21  How.  582,  584,  591 ;  to  restrain  a  private  nuisance : 
Parker  v.  Winnipiseogee,  etc.,  Co.,  2  Black,  545,  550-553;  in  a  case  of 
trust :  United  States  v.  Meyers,  2  Brock.  516 ;  by  a  married  woman 
against  an  executor  to  recover  money  given  by  the  will  to  her  separate 
use:  Hunt  v.  Danforth,  2  Curt.  592,  603;  by  stockholders  against  a  cor- 
poration and  its  managers  to  prevent  or  redress  wrongful  acts  and  deal- 
ings with  corporate  property  and  franchises:  Pond  v.  Vermont  Valley 
R.  R,,  2  Blatchf.  280,  287;  to  enforce  a  payment  of  a  judgment  for 
money  recovered  at  law  against  a  municipal  corporation  which  is  wholly 
insolvent:  Putnam  v.  New  Albany,  4  Biss.  365; "to  enforce  by  appropriate 
remedies  any  equitable  rights  which  may  be  created  by  state  laws :  Clark 
V.  Smith,  13  Pet.  195,  203. 

§  297,  3  As  a  familiar  illustration  of  this  proposition,  I  mention  the 
statutes  in  many  states  modifying  and  reconstructing  the  whole  subject 
of  trusts  in  real  and  personal  property,  and  creating  the  separate  prop- 
erty of  married  women,  and  the  like.  While  such  state  statutes  do  not 
abridge  the  jurisdiction  of  the  national  courts  to  entertain  equitable 
suits  concerning  trusts  or  married  women's  property,  they,  of  course, 
determine  the  rights  growing  out  of  these  tinists  or  of  the  married 
women  holding  separate  property. 

§297,    (c)    The   text,   and   note   3,  Beard,   83   Fed.   5,   13-16,   and   cases 

supra,  are  quoted  or  paraphrased  in  cited;   Irvine   v.   Marshall,   20   How. 

the   dissenting  opinion  in  Tucker  v.  565,    15  L.   Ed.   998;    Andrews   Bros. 

Curtin,  148  Fed.  929,  78  C.  C.  A.  557,  Co.  v.  Youngstown  Coke  Co.,  39  Fed. 

reversing  131  Fed.  647.  See,  also,  353;  Deek  t.  Whitman,  96  Fed.  873. 
Independent    District    of     Fella     v. 


583  JUDICIAL    INTERPRETATION    OF    JURISDICTION.  §  298 

finally  accomplished  by  the  exercise  of  that  jurisdiction, 
what  estates,  property  rights,  and  other  interests  of  the 
litigants  may  be  maintained,  enforced,  or  enjoyed  by  its 
means,  must  depend  to  a  great  extent  upon  the  policy  of 
legislation  adopted  in  each  individual  state. 

§  298.  Territorial  Limitations. — There  is  one  other  spe- 
cial feature  of  the  jurisdiction  which  remains  to  be  con- 
sidered, growing  out  of  the  peculiar  organization  of  the 
national  judiciary,  and  the  restriction  of  the  powers  of  each 
court  within  certain  territorial  limits  or  districts  which 
are  either  coincident  with  or  definite  parts  of  the  separate 
states, 1  This  feature  to  which  I  refer  is  the  locality  of  the 
subject-matter  of  the  suit — its  territorial  position  within 
a  certain  state  or  district — in  its  effect  upon  the  jurisdic- 
tion. In  respect  to  this  matter,  the  following  propositions 
have  been  established  by  repeated  and  unanimous  deci- 
sions :  Where  the  subject-matter  of  the  suit  is  strictly  local, 
the  jurisdiction  of  the  United  States  court  depends  upon 
such  locality,  and  can  only  be  exercised  in  the  state  where 
the  subject-matter  is  situated;  in  other  words,  vdiere  the 
subject-matter  is  local,  and  the  suit  is  brought  for  the  pur- 
pose of  directly  affecting  or  acting  upon  this  subject-matter, 
and  the  decree  when  rendered  and  the  relief  when  granted 
would  operate  directly  upon  such  subject-matter,  and  not 
merely  upon  the  person  of  the  party  defendant,  then  the 
situation  of  the  subject-matter  determines  the  proper  place 
for  the  exercise  of  the  jurisdiction;  the  jurisdiction  can 
only  be  exercised  in  the  state  where  such  subject-matter  is 
located.2     It  follows  as  a  necessary  consequence  that  where 

§  298,  1  In  most  instances,  a  state  constitutes  a  single  judicial  district 
of  the  United  States.  Some  of  the  larger  states,  like  New  York,  Penn- 
sylvania, Ohio,  and  others,  are  divided  into  two  or  more  judicial  dis- 
tricts. In  no  instance  does  a  district  embrace  two  states,  or  portions  of 
different  states. 

§298,  2  Miss.  &  Mo.  R.  R.  v.  Ward,  2  Black,  485;  Massie  v.  Watts, 
6  Cranch,  148 ;  North.  Indiana  R.  R.  v.  Mich.  Cent.  R.  R.,  15  How.  233, 
5  McLean,  444;   Tardy  v.  Morgan,  3  McLean,  358.     These  cases  will 


§  298  EQUITY   JURISPRUDENCE.  584 

a  court  of  the  United  States  is  sitting  in  one  state,  no  de- 
cree which  it  renders  can  directly  affect  land  situated  in 
another  state.  On  the  other  hand,  although  the  subject- 
matter  may  be  local, — as,  for  example,  a  tract  of  land, — 
still  if  the  object  of  the  suit  is  to  directly  deal  with  and 
affect  the  person  of  the  defendant  party,  and  not  this 
subject-matter  itself,  and  the  decree  when  rendered  and  the 
relief  when  granted  would  in  fact  directly  affect  and  oper- 
ate upon  the  person  of  the  defendant  only,  and  would  not 
directly  operate  upon  the  subject-matter,  then  the  suit  may 
be  maintained  in  any  state  or  district  where  the  court  ob- 
tains jurisdiction  of  the  person  of  the  defendant,  although 
the  subject-matter  of  the  controversy  referred  to  and  de- 
scribed in  the  decree,  and  ultimately  but  indirectly  affected 
by  the  relief  granted,  may  be  situated  in  another  state. 
Under  this  rule,  it  is  well  settled  that  equitable  suits  for 
the  specific  performance  of  contracts,  for  the  enforcement 
of  trusts,  for  relief  on  the  ground  of  fraud,  actual  or  con- 
structive, or  for  the  final  accounting  and  settlement  of  a 
partnership,  are  not  local,  although  the  land  or  other 
subject-matter  may  be  situated  in  a  state  different  from 
that  in  which  the  action  is  pending.  Such  a  suit  may  be 
brought  in  any  state  where  jurisdiction  is  obtained  of  the 
defendant's  person.  It  should  be  carefully  observed,  how- 
ever, that  a  decree  in  such  a  suit  directing  a  conveyance 
of  the  land  under  the  contract,  or  in  pursuance  of  the  trust, 
or  directing  a  sale  or  conveyance  of  the  partnership  land, 

sufficiently  illustrate  both  the  meaning  of  the  rule  and  its  application. 
In  Miss.  &  Mo.  R.  R.  v.  Ward,  2  Black,  485,  it  was  held  that  the  United 
States  circuit  court  in  Illinois  had  no  jurisdiction  of  a  suit  brought,  to 
abate  a  nuisance  which  was  situated  across  the  Mississippi  River,  within 
the  territory  of  Iowa.  In  Massie  v.  Watts,  6  Cranch,  148,  it  was  held 
that  a  suit  on  behalf  of  the  one  holding  the  equitable  estate  in  certain 
land  to  compel  a  conveyance  to  him  of  the  legal  title  is  thus  local,  and 
can  only  be  maintained  in  the  state  where  the  land  is  situated.  In 
North.  Indiana  R.  R.  v.  Mich.  Cent.  R.  R.,  15  How.  233,  a  suit  brousht 
in  Michigan,  directly  dealing  with  the  title  and  ownership  of  a  railroad 
situated  in  Indiana,  was  dismissed  for  want  of  jurisdiction. 


585  JUDICIAL   INTERPEETATION    OF    JURISDICTION".  §  298 

or  a  transfer  of  the  estate  affected  by  the  fraud,  only  binds 
and  operates  upon  the  person  of  the  defendant;  it  is  not 
of  itself  a  muniment  of  title,  and  does  not  of  itself  transfer 
any  title;  it  can  only  be  carried  into  effect  by  an  actual 
conveyance  executed  by  the  defendant;  and  the  execution 
of  such  conveyance  can  only  be  compelled  by  proper  pro- 
ceedings directed  against  the  defendant  personally,  such 
as  attachment,  fine,  and  imprisonment. ^  I  have  thus  de- 
scribed the  distinctive  elements  of  the  jurisdiction  held 
by  the  United  States  courts,  and  proceed  to  consider  the 
several  states  as  they  may  be  arranged  in  a  few  groups 

§  298,  3  Massie  v.  Watts,  6  Cranch,  148 ;  Watkins  v.  Holman,  16  Pet. 
25,  26;  Briggs  v.  French,  1  Sum.  504;  Lyman  v.  Lyman,  2  Paine,  11,  13; 
Carrington's  Heirs  v.  Brents,  1  McLean,  167;  Watts  v.  Waddle,  1  Mc- 
Lean, 200;  Tardy  v.  Morgan,  3  McLean,  358.  In  Massie  v.  Watts,  6 
Cranch,  148,  the  supreme  court  held  that  while  a  suit  by  the  equitable 
owner  of  land  to  compel  a  conveyance  of  the  legal  estate  is  local,  and 
can  only  be  brought  in  the  state  where  the  land  is  situated,  a  suit  on 
contract,  or  trust,  or  fraud  is  not  thus  local.  Watkins  v.  Holman,  16 
Pet.  25,  is  a  leading  authority.  It  decided  that  a  United  States  court  in 
one  state  may  by  its  decree  order  the  conveyance  of  land  in  another 
state,  and  the  decree  may  be  enforced  against  the  defendant  personally. 
But  the  decree  itself  does  not  operate  on  the  land  nor  on  the  title,  nor 
does  any  conveyance  made  under  the  decree  by  an  officer,  nor  by  any  one 
else  other  than  the  very  person  himself  in  whom  the  title  to  the  land  is 
vested.  In  Briggs  v.  French,  1  Sum.  504,  the  same  rule  was  applied 
by  Story,  J.,  to  cases  of  fraud,  either  actual  or  constructive.  In  Lyman 
v.  Lyman,  2  Paine,  11,  the  rule  was  applied  to  a  suit  for  the  settlement 
of  a  partnership  and  a  sale  of  firm  lands  situated  in  another  state.  In 
Tardy  v.  Morgan,  3  McLean,  358,  the  same  rule  was  reaffii-med,  and  it 
was  further  held  that  the  conveyance  made  by  the  defendant  in  pursu- 
ance of  the  decree  operates  under  the  deed  of  conveyance  itself,  and  not 
under  the  decree  merely.** 

§  298,  (a)  See,  also,  Montgomery  tained  to  restrain  the  prosecution  of 
V.  United  States,  36  Fed.  4,  a  case  a  suit  in  another  state.  This  para- 
of  the  specific  performance  of  a  con-  graph  of  the  text  is  cited  in  Banco 
tract  for  the  sale  of  land  outside  the  Minero  v.  Ross  (Tex.  Civ.  App.),  138 
state;  and  Hart  v.  Sansom,  110  U.  S.  S.  W.  224.  The  subject  is  further 
155,  3  Sup.  Ct.  586;  Cole  v.  Cunning-  considered  in  Pom.  Eq.  Rem.,  Intro- 
ham,  133  U.  S.  107,  10  Sup.  Ct.  269.  duction. 
In  the  latter  case,  a  suit  was  sus- 


§  299  EQUITY    JURISPRUDENCE.  586 

or  classes,  and  take  first  in  order  the  class  in  which  the 
jurisdiction  is  or  has  been  wholly  statutory,  special,  and 
restricted. 

§  299.     New  Hampshire — General  Extent  and  Nature. — 

The  statute  quoted  in  the  preceding  section,^  while  it  par- 
ticularly mentions  several  important  specific  heads  of 
equity  jurisprudence  and  equitable  cognizance,  also  con- 
tains in  its  general  clauses  a  very  broad  and  comprehen- 
sive grant  of  equity  jurisdiction.  The  courts  of  New 
Hampshire  have  given  a  very  liberal  interpretation  to  this 
enactment.  Unlike  the  courts  of  Massachusetts,  they  have 
not  regarded  the  language  '*in  all  other  cases  where  there 
is  not  a  plain,  adequate,  and  complete  remedy  at  law"  as 
restrictive,  or  as  imposing  any  new  and  statutory  limita- 
tion upon  the  jurisdiction  otherwise  belonging  to  the  court 
of  chancery;  but,  following  the  example  of  the  United 
States  courts  in  dealing  with  a  similar  provision  of  the 
Judiciary  Act,  they  have  treated  the  clause  as  merely  de- 
claratory of  the  well-known  principle  which  forms  an 
essential  element  of  the  general  equitable  jurisdiction  as 
exercised  in  England  and  throughout  this  country.  In 
fact,  according  to  the  conclusions  reached  by  the  court  after 
a  careful  historical  examination,  it  seems  to  be  decided  that 
the  equitable  jurisdiction  now  possessed  by  the  New  Hamp- 
shire courts  is  not  derived  from  this  statute ;  that  it  existed 
to  its  full  extent  during  the  colonial  period,  and  has  never 
been  abrogated  or  abandoned ;  and  that  the  provisions  now 
contained  in  the  Revised  Statutes  of  the  state,  which  were 
adopted  in  1832,  instead  of  being  the  original  source  of  the 
equitable  powers,  are  simply  regulative  and  limiting  in 
their  effect.  The  practical  conclusion  to  be  derived  from 
a  comparison  of  the  leading  decisions  is,  that  with  respect 
to  the  heads  of  equitable  cognizance  enumerated  in  the 
statute,  and  with  respect  to  the  matters  embraced  in  the 
broader  and  more  general  grant  of  authority,  the  courts 

§  299,  1  See  ante,  note  under  §  286. 


587  JUDICIAL   INTERPEETATION    OF    JURISDICTION.  §  299 

of  New  Hampshire  possess  the  full  equitable  jurisdiction, 
equal  in  all  respects  to  that  exercised  by  the  high  court 
of  chancery  in  England,  so  far  as  it  has  power  to  deal  with 
the  same  subject-matter.  As  the  statute,  like  some  por- 
tions of  the  United  States  constitution,  enumerates,  rather 
than  describes,  the  courts,  in  their  liberal  mode  of  inter- 
pretation, have  held  that  their  jurisdiction  includes  all  the 
incidental  and  auxiliary  details,  powers,  and  remedies  be- 
longing to  the  general  system  of  equity  jurisprudence,  and 
reasonably  necessary  to  render  their  principal  functions 
effective  in  the  due  administration  of  justice  according  to 
the  methods  and  usages  of  equity;  and  that  this  jurisdic- 
tion has  not  been  restricted,  abridged,  or  modified,  because 
the  courts  of  law  may  have  obtained  the  concurrent  power 
to  grant  similar  remedies  which  in  some  cases  may  be  re- 
garded as  adequate. 2     In  other  words,  while  the  equitable 

§  299,  2  Wells  v.  Pierce,  27  N.  H.  503,  512  (1853) ;  Walker  v.  Cheevcr, 
35  N".  H.  339,  349;  Bean  v.  Coleman,  44  N.  H.  539,  547;  Samuel  v.  Wiley, 
50  N.  H.  353,  354,  355 ;  Craft  v.  Thompson,  51  N.  H.  536,  542.  Since  the 
discussion  in  several  of  these  cases  is  very  able,  and  since  the  conclu- 
sions reached  will  apply  in  other  states  as  well  as  in  New  Hampshire, 
and  will  aid  in  determining  the  extent  of  their  equitable  jurisdiction,  I 
shall  quote  some  instructive  passages  from  one  or  two  of  these  opinions. 
The  case  of  Wells  v.  Pierce,  27  N.  H.  503,  is  especially  interesting.  The 
historical  review  by  Mr.  Justice  Bell  might  doubtless  throw  much  light 
upon  the  equitable  system  in  others  of  the  older  states.  I  quote  from 
his  opinion,  at  page  512 :  "This  court  has  a  broad  jurisdiction  as  a  court 
of  equity  in  all  cases  of  trust,  fraud,  accident,  or  mistake.  The  limits 
of  its  jurisdiction  in  these  cases  are  co-extensive  with  those  of  the  court 
of  chancery  and  other  courts  of  equity  in  England.  Equity,  as  a  great 
branch  of  the  law  of  their  native  country,  was  brought  over  by  the 
colonists,  and  has  always  existed  as  a  part  of  the  common  law,  in  its 
broadest  sense,  in  New  Hampshire.  While  our  territory  was  under  the 
colonial  government  of  Massachusetts,  there  is  reason  to  believe  that  the 
general  court  exercised  original  chancery  jurisdiction:  Wash.  Jud.  Hist, 
of  Mass.  34;  Ann.  Charters  of  Mass.  94.  Under  the  first  royal  governor 
of  this  province,  Robert  Mann  was  appointed  chancellor  of  the  province, 
and  among  the  early  records  are  to  be  found  bills  in  equity  which  were 
heard  and  decided  before  him :  1  Belk.  Hist.  198,  200.  In  1692,  by  'An 
act  for  establishing  courts  of  judicature,'  it  was  provided  that  'there 


§  299  EQUITY   JURISPRUDENCE.  588 

jurisdiction  of  New  Hampshire  is  not  in  its  extent  actually 
commensurate  with  that  of  the  English  court  of  chancery, 
yet  so  far  as  it  does  extend,  and  with  respect  to  all  matters 
embraced  within  its  scope,  it  is  identical  with  the  jurisdic- 
tion held  by  any  court  of  general  equitable  powers.  Hav- 
ing thus  shown  the  liberal  spirit  in  which  the  courts  of 
New  Hampshire  have  interpreted  the  statutes,  and  their 
tendency  to  maintain  and  enlarge  their  own  equitable 
powers,  and  the  comprehensive  equitable  jurisdiction  which 
they  possess,  I  shall  now  describe,  in  a  very  brief  and  sum- 
mary manner,  the  practical  results  which  have  been  reached 
by  applying  this  mode  of  interpretation  to  the  most  impor- 
tant subjects  of  equitable  cognizance.  It  will  appear  that 
a  complete  system  of  equity  jurisprudence  has  been  de- 
veloped within  the  limits  which  fix  the  extent  of  the  equi- 
table jurisdiction. 

shall  be  a  court  of  chancery  within  this  province,  which  said  court  shall 
have  power  to  hear  and  determine  all  matters  of  equity,  and  shall  be  es- 
teemed and  accounted  the  high  court  of  chancery  of  this  province;  that 
the  governor  and  council  be  the  said  high  court  of  chancery,'  etc.  It 
is  not  known  that  this  law  was  ever  repealed,  and  it  is  supposed  that 
the  governor  and  council,  who  composed  the  court  of  appeals,  continued 
to  exercise  chancery  powers  till  the  Revolution.  .  .  .  Equity  having  thus 
always  constituted  a  part  of  the  law  of  New  Hampshire,  though  there 
was  a  long  period  after  the  Revolution  when  there  was  no  chancery 
court,  and  the  jurisdiction  conferred  on  this  court  in  1832  being  as 
broad  as  equity  itself,  the  question  whether  this  court  will  lose  its 
jurisdiction  because  there  is  adequate  remedy  at  law  is  to  be  decided 
here  as  it  would  be  in  England.  If  courts  of  equity  had  jurisdiction 
in  certain  cases  for  which  the  ordinary  proceedings  at  common  law  did 
not  then  afford  an  adequate  remedy,  that  jurisdiction  will  not  be  lost 
because  authority  to  decide  in  such  cases  has  been  conferred  on  courts 
of  law  by  statute,  unless  there  are  negative  words  excluding  the  juris- 
diction of  courts  of  equity.  ...  It  is  well  known  that  equitable  relief 
can  be  but  very  imperfectly  obtained  in  courts  of  law,  because  the  power 
of  those  courts  and  their  modes  of  practice  are  ill  adapted  for  that  pur- 
pose. On  the  investigation  of  all  questions  of  fraud,  the  discovery  by 
the  oath  of  the  party  is  one  of  the  effectual  means  for  its  detection. 
The  common  law  affords  no  means  of  obtaining  such  discovery,  and  the 
recent  statutory  enactments  [in  New  Hampshire]   are  but  an    untried 


589  JUDICIAL    INTERPRETATION    OF    JURISDICTION.  §  300 

§  300.  Specific  Performance. — The  courts  of  New  Hamp- 
shire possess  the  full  power  to  decree  the  specific  perform- 
ance of  executory  contracts,  whenever^  according  to  the 
doctrines  of  equity  jurisprudence,  such  remedy  is  or  may 
be  granted,  without  any  exception  or  limitation,  i  The 
jurisdiction  includes,  in  its  fullest  extent,  the  specific  en- 
forcement of  verbal  contracts  for  the  purchase  and  sale 
of  lands,  either  where  the  agreement  is  admitted  by  the 
defendant  in  his  pleading,  or  where  a  part  performance 
has  taken  the  case  out  from  the  operation  of  the  statute  of 
frauds.  The  interpretation  put  upon  their  statutes  by  the 
courts  of  Massachusetts  and  of  Maine,  whereby  the  power 
to  enforce  the  specific  performance  of  such  verbal  contracts 

experiment  which  may  fall  much  short  of  the  discovery  in  chancery." 
Walker  v.  Cheever,  35  N.  H.  339,  349,  per  Eastman,  J.:  "Whatever 
doubts  may  have  been  entertained  heretofore,  we  regard  it  as  now  set- 
tled that  this  court,  as  a  court  of  equity,  has  full  chancery  powers,  and 
a  general  equity  jurisdiction :  Wells  v.  Pierce,  27  N.  H.  503 ;  and  that  it 
will  administer  relief  in  all  cases  falling  within  equity  jurisdiction, 
where  the  statutes  of  the  state  have  not  provided  other  means  of 
redress."  The  court  further  held  that  the  objection  that  there  was  an 
adequate  remedy  at  law  would  not  apply  to  the  case,  since  it  is  a  well- 
established  principle  that  the  equitable  jurisdiction  once  existing  will 
not  be  lost  or  ousted  because  the  courts  of  law  have  adopted  equitable 
principles  and  give  relief  under  circumstances  which  formerly  belonged 
to  the  domain  of  equity  alone.  Craft  v.  Thompson,  51  N.  H.  536,  542, 
per  Foster,  J.:  "The  jurisdiction  of  a  court  of  equity,  especially  under 
the  statute,  is  very  comprehensive,  and  in  all  cases  of  fraud,  mistake, 
or  accident,  courts  of  equity  may,  in  virtue  of  their  general  jurisdiction, 
interfere  to  set  aside  awards,  upon  the  same  principles  and  reasons  which 
justify  their  interference  in  regard  to  other  matters  where  there  is  no 
adequate  remedy  at  law.  And  this  court  may,  by  statute,  'grant  writs  of 
injunction  whenever  the  same  is  necessary  to  prevent  fraud  or  injus- 
tice': Gen.  Stats.,  chap.  190,  §  1." 

§  300,  1  Newton  v.  Swazey,  8  N.  H.  9,  11 ;  Tilton  v.  Tilton,  9  N.  H. 
385,  389 ;  Powers  v.  Hale,  25  N.  H.  145 ;  Pickering  v.  Pickering,  38  N.  H. 
400,  407;  Bunton  v.  Smith,  40  N.  H.  352;  Eastman  v.  Plumer,  46  N.  H. 
464,  478;  Chartier  v.  Marshall,  51  N.  H.  400;  Ewins  v.  Gordon,  4S 
N.  H.  444. 


§  301  EQUITY   JURISPRUDENCE.  590 

has  been  denied,  is  expressly  rejected. 2  In  administering 
this  remedy  the  courts  have  adopted  all  the  settled  rules  of 
equity  which  govern  its  use,  admitting  all  of  the  equitable 
limitations  and  defenses  which  are  really  meant  by  the 
ordinary  language  which  describes  it  as  "  discretionary. "  3 

§  301.     Mortgage,  Foreclosure,  and  Redemption. — As  the 

statute  in  express  terms  gives  jurisdiction  in  cases  "of  the 
redemption  and  foreclosure  of  mortgages,"  no  question 
could  arise  as  to  the  existence  of  a  full  power  to  grant 
these  remedies  under  all  circumstances  of  equitable  cogni- 
zance. It  is  decided,  however,  that  this  grant  of  equitable 
jurisdiction  in  cases  of  redemption  has  not  repealed  by 
implication  a  prior  statute  passed  in  1829,  by  which  it  is 
provided  that  if  the  mortgagee  should  be  in  quiet  posses- 
sion of  the  mortgaged  premises  for  one  year  after  condi- 
tion broken,  without  payment  or  lawful  tender  of  the  debt 
within  that  time,  the  mortgagor  should  be  thereby  forever 
barred  and  foreclosed  of  his  right  to  redeem.  This  statu- 
tory foreclosure  or  bar  is  not  abrogated  by  the  right  of 
redemption  by  means  of  a  suit  in  equity. ^  A  suit  in  equity 
may  be  maintained  to  redeem  a  pledge,  if  an  accounting 

§  300,  2  Newton  v.  Swazey,  8  N.  H.  9,  11 ;  Tilton  v.  Tilton,  9  N.  H. 
385,  389 ;  Bunton  v.  Smith,  40  N.  H.  352.  In  Tilton  v.  Tilton,  9  N.  H. 
385,  Wilcox,  J.,  said:  "It  is  no  objection  to  the  power  of  a  court  of 
equity  to  decree  a  specific  performance,  that  the  contract  is  proved  only 
by  parol  testimony.  Cases  in  Massachusetts  and  Maine  are  not  in  point 
on  this  subject,  as  they  rest  upon  the  peculiar  provisions  of  their  stat- 
utes conferring  chancery  powers.  This  court  has  the  power  to  decree 
the  specific  performance  of  contracts  generally  without  qualification; 
and  it  is  a  reasonable  construction  that  our  powers  on  this  subject 
conform  substantially  to  the  practice  of  courts  of  chanceiy  in  England, 
so  far  as  that  practice  may  be  applicable  to  our  condition." 

§  300  3  Powers  v.  Hale,  25  N.  H.  145 ;  Pickering  v.  Pickering,  38  N.  H. 
400,  407;  Eastman  v.  Plumer,  46  N.  H.  464,  478;  Chartier  v.  Marshall, 
51  N.  H.  400.  In  Ewins  v.  Gordon,  49  N.  H.  444,  a  unilateral  contract  in 
the  form  of  a  penal  bond  for  the  conveyance  of  land  was  enforced. 

§  301,  1  Wendell  v.  New  Hampshire  Bank,  9  N.  H.  404,  416. 


591  JUDICIAL    INTERPRETATION    OF    JURISDICTION.  §  302 

is  necessary  to  ascertain  tlie  amount  due,  or  there  lias  been 
an  assignment  of  the  pledge. 2 

§302.  Discovery. — The  statute  mentions  cases  "of  dis- 
covery, where  discovery  may  be  had  according  to  the  course 
of  proceedings  in  equity."  The  earlier  decisions  plainly 
admit  a  discovery,  in  suits  brought  both  for  discovery  and 
relief,  as  a  source  of  jurisdiction,  or  rather,  perhaps,  as 
an  aid  to  the  exercise  of  the  jurisdiction  in  cases  where  the 
subject-matter,  such  as  fraud,  is  of  itself  one  of  equitable 
cognizance.  The  more  recent  decisions  leave  no  doubt  that 
the  so-called  ''American  rule,"  formerly  adopted  in  some 
of  the  states,  whereby  a  discovery  is  regarded  as  an  inde- 
pendent ground  of  a  concurrent  jurisdiction  to  adjudicate 
upon  purely  legal  rights  and  to  grant  purely  legal  remedies 
in  cases  not  otherwise  belonging  to  the  equitable  jurisdic- 
tion, is  rejected  by  the  courts  of  New  Hampshire. ^     The 

§  301,  2  White  Mts.  R.  R.  v.  Bay  State  Iron  Co.,  50  N.  H.  57  (1870). 

§  302,  1  Tappan  v.  Evans,  11  N.  H.  311,  325 ;  Stevens  v.  Williams,  12 
N.  H.  246;  Stone  v.  Anderson,  26  N.  H.  506,  518;  Miller  v.  Scammon, 
52  N.  H.  609,  610  (1873).  In  the  first  three  of  these  cases  the  suit  was 
for  a  discovery  and  relief,  and  the  discovery  was  held  proper,  and  even 
the  jurisdiction  of  the  court  was  spoken  of  as  partly,  at  least,  based 
on  the  discovery.  But  in  each  case  the  relief  was  sought  on  the  gTound 
of  fraud,  and  the  jurisdiction  was  expressly  held  to  exist  independently 
of  any  discovery.  In  the  latest  case  of  Miller  v.  Scammon,  52  N.  H. 
609,  610,  which  was  also  one  of  fraud,  Foster,  J.,  after  stating  the  gen- 
eral jurisdiction  of  equity  in  cases  of  fraud,  added :  "And  it  is  said  that 
in  some  cases  of  fraud  for  which  the  common  law  affords  complete  and 
adequate  relief,  chancery  may  have  concurrent  jurisdiction.  This  gen- 
eral proposition,  however,  is  too  broad  when  applied  to  our  practice, 
under  the  rules  of  evidence  which  permit  and  require  parties  to  testify. 
In  the  English  practice,  and  perhaps  in  some  American  states,  equity 
may  entertain  this  concurrent  jurisdiction,  because,  although  the  remedy 
at  law  may  be  said  to  be  adequate,  the  means  of  obtaining  the  truth, 
where  discovery  by  the  oath  of  the  party  is  essential,  may  be  wanting 
or  deficient  in  the  courts  of  common  law.  .  .  .  But  to  a  very  great  extent 
the  right  to  enforce  discovery  and  search  the  conscience  of  the  party, 
which  was  formerly  only  to  be  had  in  chancery,  is  afforded  in  the  prac- 
tice and  by  the  statutes  of  our  law  courts  as  fully  and  effectually  as 


§  303  EQUITY   JURISPRUDENCE.  592 

suit  for  a  discovery  proper  witliout  any  relief,  in  aid  of  an 
action  or  defense  at  law,  seems  to  be  admitted,  altliough  the 
decisions  are  not  very  explicit.^  * 

§  303.  Fraud,  Cancellation,  Rescission,  and  Other  Reme- 
dies.a — The  general  equitable  jurisdiction  in  cases  of  fraud, 
and  the  power  to  grant  a  cancellation,  a  rescission,  an  in- 
junction, an  accounting,  or  any  other  kind  of  remedy,  neces- 
sary, under  the  circumstances,  to  attain  the  ends  of  justice, 
are  asserted  in  the  most  emphatic  manner.^  I  have  placed 
in  the  foot-note  some  illustrations  of  the  manner  in  which 
this  branch  of  the  jurisdiction  has  been  exercised,  and  of 
the  remedies  which  have  been  granted.^ 

by  a  court  of  equity."  This  opinion  fully  sustains  the  conclusions 
reached  by  me  in  the  text  of  a  former  paragraph,  concerning  the  effect 
of  the  modern  statutes  upon  the  doctrine  respecting  discovery  as  an  inde- 
pendent source  of  jurisdiction.     See  ante,  §  230. 

§  302,  2  Stevens  v.  Williams,  12  F.  H.  246;  Dennis  v.  Riley,  21  N.  H. 
50;  Robinson  v.  Wheeler,  51  N.  H.  384.  In  Stevens  v.  Williams,  12 
N.  H.  246,  which  was  a  bill  for  discovery  and  relief,  the  court  expressly 
declined  to  discuss  the  question  whether  a  suit  for  a  discovery  alone  in 
aid  of  an  action  or  defense  at  law  was  within  the  jurisdiction.  But  in 
the  two  other  cases  cited,  the  propriety  of  such  a  suit  is  admitted,  by 
judicial  dicta  at  least. 

§  303,  1  Dodge  v.  Griswold,  8  N.  H.  425 ;  Tappan  v.  Evans,  11  N.  H. 
311,  325;  Stevens  v.  Williams,  12  N.  H.  246;  Rand  v.  Redington,  13 
N.  H.  72,  76,  38  Am.  Dec.  475;  Brewer  v.  Hyndman,  18  N.  H.  9,  17; 
Tracy  v.  Herrick,  25  N.  H.  381,  394;  Stone  v.  Anderson,  26  N.  H.  506, 
518 ;  Wells  v.  Pierce,  27  N.  H.  503,  512 ;  Lyme  v.  Allen,  51  N.  H.  242 ; 
Craft  V.  Thompson,  51  N.  H.  536,  542 ;  Miller  v.  Scammon,  52  N.  H.  609, 
610;  Marston  v.  Durgin,  54  N.  H.  347,  374;  Gordon  v.  Gordon,  55  N.  H. 
399 ;  Moore  v.  Kidder,  55  N.  H.  488 ;  Hathaway  v.  Noble,  55  N.  H.  508. 

§  303,  2  Remedy  of  cancellation  in  general :  Tappan  v.  Evans,  11  N.  H. 
311,  325 ;  Stone  v,  Anderson,  26  N.  H.  506,  518 ;  setting  aside  or  canccl- 

§  302,  (a)  That  an  action  for  dis-  Atl.  1075,  where  the  right  of  inspec- 

covery,  without  relief,  is  permissible  tion  of  personal  property  belonging 

in  New  Hampshire  was  determined  to  the  defendant,  in  aid  of  an  action 

in   the   very   interesting   and  impor-  for  a  personal  tort,  was  enforced, 

tant  case  of  Eeynolds  v.  Burgess  Sul-  §  303,   (a)  This  paragraph  is  cited 

phite   Fiber   Co.,   71   N.   H.   332,    93  in  Druon  v.  Sullivan,  66  Vt.  609,  30 

Am.  St.  Bep.  535^  57  L.  E.  A.  949,  51  Atl.  98. 


[)'J3  JUDICIAL   INTERPRETATION    OF    JURISDICTION.  §  304 

§  304.  Mistake:  Reformation,  and  Other  Remedies. — 
Tlie  jurisdictiou  over  all  cases  of  mistake  which  are  mat- 
ters of  equitable  cognizance,  and  to  grant  all  the  appro- 
priate remedies  therein,  is  asserted  in  the  same  broad  and 
mirestricted  terms  as  that  over  cases  of  fraud. ^  The  equi- 
table doctrines  concerning  the  reformation  of  written  in- 
struments on  account  of  mistake  are  fully  accepted.  The 
American  rule  which  permits  parol  evidence  of  such  a  mis- 
take on  behalf  of  the  plaintiff  who  seeks  to  reform  an  agree- 
ment and  then  to  compel  its  specific  performance  as  thus 
reformed,  as  well  as  on  behalf  of  the  defendant  who  seeks 
to  defeat  its  performance  by  proving  a  mistake,  is  also 
adopted.2  The  remedy  of  rescission  may  also  be  granted; 
as,  for  example,  where  an  award  is  set  aside  on  account 

ing  a  deed  fraudulent  as  against  creditors ;  Dodge  v.  Griswold,  8  N.  H. 
425 ;  setting  aside  an  award  on  the  ground  of  fraud :  Rand  v.  Redington, 
13  N.  H.  72,  77,  38  Am.  Dec.  475;  Tracy  v.  Herrick,  25  N.  H.  381,  394; 
Craft  V.  Thompson,  51  N.  H.  536,  542;  setting  aside  a  fraudulent  mort- 
gage; Brewer  v.  Hyndman,  18  N.  H.  9,  11;  setting  aside  a  decree  of  a 
probate  court  obtained  through  fraud :  Gordon  v.  Gordon,  55  N.  H.  399 ; 
injunction  to  restrain  commission  of  fraud :  Marston  v.  Durgin,  54  N.  H. 
347,  374;  injunction  against  a  judgment  at  law  obtained  by  fraud,  or  to 
which  there  was  a  defense  of  fraud :  Lyme  v.  Allen,  51  N.  H.  242 ;  Craft 
V.  Thompson,  51  N.  H.  536,  542;  suit  in  aid  of  a  proceeding  at  law  to 
prevent  a  party  from  fraudulently  transferring  his  property  so  as  to 
defeat  the  collection  of  a  judgment  to  be  recovered  against  him:  Moore 
V.  Kidder,  55  N.  H.  488;  delay  and  laches  of  the  defrauded  party,  their 
effect  upon  his  right  to  relief  against  the  fraud:  Hathaway  v.  Noble, 
55  N.  H.  508. 

§  304,  1  Rand  v.  Redington,  13  N.  H.  72,  76,  38  Am.  Dec.  475 ;  Bellows 
V.  Stone,  14  N.  H.  175;  Smith  v.  Greeley,  14  N.  H.  378;  UnderAvood  v. 
Campbell,  14  N.  H.  393;  Craig  v.  Kittredge,  23  N.  H.  231;  Tracy  v. 
ITorrick,  25  N.  H.  381,  394;  Wells  v.  Pierce,  27  N".  H.  503,  512;  Busby 
V.  Littlcfield,  31  N.  H.  193,  199,  33  N.  H.  76;  Avery  v.  Bowman,  40  N.  II. 
453,  77  Am.  Dec.  728;  Craft  v.  Thompson,  51  N.  H.  536,  542;  Bradford 
V.  Bradford,  54  N.  H.  463. 

§  304,  2  Bellows  v.  Stone,  14  N.  H.  175  (parol  evidence  on  behalf  of 
tlie  plaintiff  in  case  of  reformation  and  specific  performance,  as  well 
as  on  part  of  the  defendant);  Smith  v.  Greeley,  14  N.  H.  378;  Busby 
v.  Littlefield,  31  N.  H.  193,  199,  33  N.  H.  76 ;  Bradford  v.  Bradford,  54 
N.  H.  463  (when  a  reformation  will  not  be  granted). 
1—38 


§§305,306  EQUITY    JURISPRUDENCE.  594 

of  mistake. 3     Other  reliefs  may  be  given,  depending  upon 
the  special  circmnstances  of  the  case.* 

§  305.  Trusts. — Jurisdiction  is  expressly  given  by  the 
statute  in  cases  of  trust  as  well  as  of  fraud  and  mistake. 
This  embraces,  it  has  been  held,  not  merely  the  general 
power  to  enforce  the  performance  of  a  trust  against  the 
trustee  at  the  suit  of  the  beneficiary,  but  all  the  incidental 
and  auxiliary  powers  and  remedies  which  may  be  neces- 
sary to  maintain  and  protect  the  rights  of  all  the  parties 
interested;  as,  for  example,  the  removal  of  trustees,  the 
appointment  of  trustees,  the  interpretation  and  construc- 
tion of  instruments  creating  a  trust,  the  direction  and  man- 
agement of  trustees  in  the  performance  of  their  duties,  the 
supervision  of  investments  of  trust  property,  and  other  like 
incidents.! 

§  306.  Accounting. — Althougli  this  remedy  is  not  speci- 
fically mentioned  in  the  statute,  the  jurisdiction  to  compel 
an  accounting  and  to  settle  accounts  exists,  and  is  exer- 
cised by  the  courts,  under  the  regulations,  restrictions,  and 
limitations  governing  its  use,  which  form  a  part  of  equity 
jurisprudence.! 

§304,  3  Rand  v.  Redington,  13  N.  H.  72,  76,  38  Am.  Dec.  475;  Tracy 
V.  Herrick,  25  N.  H.  381,  394;  Craft  v.  Thompson,  51  N.  H.  536,  542. 

§  304,  4  Avery  v.  Bowman,  40  N.  H.  453,  77  Am.  Dec.  728.  A  mistake 
was  made  in  levying  an  execution  by  which  a  too  large  amount  of  land 
was  taken  and  transferred  to  the  execution  creditor.  Such  mistake  may 
be  corrected  by  a  decree  compelling  the  creditor  to  reconvey  the  excess 
to  the  judgment  debtor. 

§305,  1  Wells  V.  Pierce,  27  N.  H.  503,  512;  Wheeler  v,  Perry,  18 
N.  H.  307,  311  (construction  of  the  trust,  aiding  and  directing  the  trus- 
tee, in  the  management  of  the  trust  property) ;  Petition  of  Baptist 
Church,  51  N.  H.  424  (same  as  the  last) ;  Methodist  Epis.  Soc.  v.  Heirs 
of  Harriman,  54  N.  H.  444,  445  (charitable  trusts,  direction  of  invest- 
ments, etc.) ;  but  under  this  general  power  over  trusts,  the  courts  of  New 
Hampshire  do  not  possess  the  jurisdiction  to  entertain  the  "administra- 
tion suit"  under  ordinary  circumstances:  Walker  v,  Cheever,  35  N.  H. 
339,  349. 

§  306,  1  Walker  v.  Cheever,  35  N.  H.  339,  349  (will  not  exercise  the 
jurisdiction  when  the  account  is  all  on  one  side,  and  no  discovery  is 


595      JUDICIAL   INTERPRETATION    OF    JURISDICTION.      §§307,308 

§  307.  Injunction. — The  statute  expressly  authorizes  an 
injunction  ''whenever  tlie  same  is  necessary  to  prevent 
fraud  and  injustice."  The  jurisdiction  has  been  exercised 
in  a  very  careful  and  guarded  manner,  and  the  courts  have 
shown  a  tendency  to  restrict  rather  than  to  enlarge  its  use.^ 
Where  the  facts  and  circumstances  are  sufficient,  and  the 
remedy  at  law  is  inadequate,  it  may  be  granted  to  restrain 
a  private  nuisance,^  to  prevent  waste, ^  to  restrain  a  tres- 
pass when  it  is  continuous  or  would  produce  irreparable 
injuiy,^  and  to  stay  an  action,  judgment,  or  execution  at 
law.^  An  injunction  may  also  be  proper  in  a  suit  by  stock- 
holders to  restrain  the  managing  officers  of  a  corporation 
from  improper  dealings  with  the  corporate  property  and 
franchises,^  but  there  is  no  jurisdiction  of  equity  to  restrain 
the  collection  of  a  tax  illegally  assessed  and  laid."^ 

§  308.  Nuisance  and  Waste. — The  statute  expressly  men- 
tions these  heads  in  its  enumeration  of  powers.  The  su- 
preme court,  while  asserting  the  full  equitable  jurisdiction 
to  restrain  or  abate  nuisances  of  all  kinds,  has  exercised  it 
with  great  caution,  and  has  evidently  preferred  to  leave 
the  injured  party  to  his  legal  remedy  wherever  that  was 

asked) ;  Treadwell  v.  Brown,  41  N.  H.  12  (accounting  and  settlement  of 
a  partnership  at  suit  of  a  creditor  of  one  individual  partner)  ;  Dennett 
V.  Dennett,  43  N.  H.  499,  501,  503  (account  of  waste) ;  White  Mts.  R.  R. 
V.  Bay  State  Iron  Co.,  50  N.  H.  57  (accounting  in  suit  to  redeem  a 
pledge). 

§  307,  1  Marston  v.  Durgin,  54  N.  H.  347,  374;  B.  &  M.  R.  R.  v.  P.  &  D. 
R.  R.,  57  N.  H.  200;  Webber  v.  Gage,  39  N.  H.  182. 

§  307,  2  Coe  V.  Winnipiseogee  M.  Co.,  37  N.  H.  254;  Webber  v.  Gage, 
39  N.  H.  182;  Burnham  v.  Kempton,  44  N.  H.  78,  79,  92;  Eastman  v. 
Amoskeag  M.  Co.,  47  N.  H.  71,  78;  Bassett  v.  Salisbury  M.  Co.,  47  N.  H. 
426,  437. 

§  307,  3  Dennett  v.  Dennett,  43  N.  H.  499,  501,  503. 

§  307,  4  Hodgman  v.  Richards,  45  N.  H.  28. 

§  307,  5  Ilibbard  v.  Eastman,  47  N.  H.  507,  508,  93  Am.  Dec.  467 ; 
Lyme  v.  Allen,  51  N.  H.  242;  Robinson  v.  Wheeler,  51  N.  H.  384;  Craft 
V.  Thompson,  51  N.  H.  536,  542.       . 

§  307,  6  March  v.  Eastern  R.  R.,  40  N.  H.  548,  567,  77  Am.  Dec.  732. 

§  307,  7  Brown  v.  Concord,  56  N.  H.  375. 


Si 


309,  310  EQUITY   JURISPRUDENCE.  596 


at  all  practicable.^     The  same  is  true  concerning  waste  ^ 
and  trespass.^ 

J  §  309.  Creditor's  Suit. — The  statute  in  express  terms 
permits  the  "creditor's  suit"  by  a  judgment  creditor  whose 
legal  remedies  have  been  exhausted.  The  supreme  court 
has  sustained  the  full  equitable  jurisdiction  on  behalf  of 
the  judgment  creditor  to  reach  the  equitable  rights  and 
estates  of  the  debtor,  or  assets  not  subject  to  lev^^  by  execu- 
tion or  attachment,  or  property  fraudulently  assigned  and 
transferred ;  and  has  even  held  that  jurisdiction  exists  inde- 
pendently of  the  express  statutory  grant.i 

§  310.  Other  Special  Cases. — In  addition  to  the  forego- 
ing general  heads  of  equitable  cognizance,  the  jurisdiction 
has  been  asserted  or  exercised  in  the  following  cases:  To 
remove  a  cloud  from  title  by  setting  aside  a  deed  of  land  ;i 
in  a  suit  for  the  partition  of  real  estate  ;2  for  the  estab- 
lishment of  a  widow's  dower  right  and  the  assignment  of 
her  dower  ;3  to  define  and  limit  a  right  of  way  and  to  regu- 
late its  use  ;4  in  a  suit  by  stockholders  against  the  corpora- 
tion and  its  managers  to  prevent  or  redress  any  improper 
dealings  with  the  corporate  property  or  franchises;^  in  a 
suit  for  an  accounting  and  settlement  of  partnership  mat- 
ters ;6  to  order  the  arrest  of  a  party  to  a  suit  who  is  in- 

§  308,  1  Coe  V.  Winnipiseogee  M.  Co.,  37  N.  H.  254;  Webber  v.  Gage, 
39  N.  H.  182;  Burnliam  v.  Kempton,  44  N.  H.  78,  79,  92;  Eastman  v. 
Amoskeag  M.  Co.,  47  N.  H.  71,  78;  Bassett  v.  Salisbury  M.  Co.,  47  N.  H. 
426,  437.  The  discussion  of  the  doctrine  in  some  of  these  cases  is  very 
elaborate  and  able. 

§  308,  2  Dennett  v.  Dennett,  43  N.  H.  499,  501,  503. 

§  308,  3  Hodgman  v.  Richards,  45  N.  H.  28. 

§309,  IBay  State  Iron  Co.  v.  Goodall,  39  N.  H.  223,  230;  Sheafe  v. 
Sheafe,  40  N.  H.  516,  518 ;  Treadwell  v.  Brown,  44  N.  H.  551. 

§  310,  1  Downing  v.  Wherrin,  19  N.  H.  9,  91,  49  Am.  Dec.  139. 

§  310,  2  Whitten  v.  Whitten,  36  N.  H.  326,  332. 

§  310,  3  Norris  v.  Morrison,  45  N.  H.  490. 

§  310,  4  Bean  v.  Coleman,  44  N.  H.  539,  547. 

§  310,  5  March  v.  Eastern  R.  R.,  40  N.  H.  548,  567,  77  Am.  Dec.  732. 

§  310,  6  Treadwell  v.  Brown,  41  N.  H.  12. 


597  JUDICIAL   INTERPRETATION    OF    JURISDICTION.  §  311 

tending  to  leave  the  state  for  the  purpose  of  avoiding  the 
decree  which  will  be  rendered  therein.*^  On  the  other  hand, 
it  is  held  that  a  court  of  equity  in  New  Hampshire  does  not 
possess  jurisdiction  to  entertain  a  suit  for  the  administra- 
tion and  settlement  of  a  decedent's  estate,  that  subject  hav- 
ing been  intrusted  to  the  courts  of  probate  ;^  nor  the  juris- 
diction to  restrain  the  collection  of  a  tax  illegally  assessed.^ 

§311.  Massachusetts:  General  Extent  and  Nature — The 
Statutory  Construction. — The  courts  of  Massachusetts  origi- 
nally possessed  the  narrowest  possible  equitable  jurisdic- 
tion; and  the  legislation  successively  enlarging  the  scope 
of  their  equitable  powers  has,  until  within  a  few  years  past, 
been  very  gradual  and  exceedingly  cautious.  The  earliest 
statute  of  1798,  chapter  77,  conferred  an  authority  only  in 
cases  of  foreclosure  or  redemption  of  mortgages.  In  the 
Laws  of  1817,  chapter  87,  the  legislature  gave  to  the  su- 
preme court  jurisdiction  in  equity  over  ''all  cases  of  trust 
arising  under  deeds,  wills,  or  in  the  settlement  of  estates, 
and  all  cases  of  contract  in  writing,  where  a  party  claims 
the  specific  performance  of  the  same,  and  in  which  there 
may  not  be  a  plain,  adequate,  and  complete  remedy  at  law." 
Other  statutes  were  passed,  and  additional  powers  were 
given,  enlarged,  or  modified  in  the  Revised  Statutes  of  1830, 
and  in  1851,  1853,  1855,  1857,  and  1858,  until  the  various 
provisions  were  completed  which  are  collected  and  con- 
densed in  chapter  113,  section  2,  of  the  Revised  Statutes 
of  1873,  quoted  in  the  preceding  section. ^  Finally,  by  the 
Laws  of  1877,  chapter  178,  the  last  subdivision  of  said 
chapter  113,  section  2,  of  the  Revised  Statutes,  which  reads, 
*'And  shall  have  fully  equity  jurisdiction  according  to  the 
usage  and  practice  of  courts  of  equity,  in  all  other  cases 
where  there  is  not  a  plain,  adequate,  and  complete  remedy 
at  law,"  was  repealed,  and  instead  thereof  was  substituted 

§  310,  7  Samuel  v.  Wiley,  50  N.  H.  353-355. 

§  310,  8  Walker  v.  Cheever,  35  N.  H.  339,  349. 

§  310,  9  Brown  v.  Concord,  56  N.  H.  375. 

§  311,  1  See  ante,  in  note  under  §  286. 


§  312  EQUITY    JURISPRUDENCE.  598 

the  following  most  comprehensive  provision:  **The  su- 
preme judicial  court  shall  have  jurisdiction  in  equity  of 
all  cases  and  matters  of  equity  cognizable  under  the  general 
principles  of  equity  jurisprudence;  and  in  respect  of  all 
such  cases  and  matters  shall  be  a  court  of  general  equity 
jurisdiction." 

§  312.  The  language  of  this  last  enactment  seems  to  be 
as  strong,  in  its  grant  of  powers,  as  any  which  could  pos- 
sibly be  used.  There  can  be  no  reasonable  doubt  that  under 
it  a  complete  equitable  jurisdiction  commensurate  in  its 
nature  and  extent  with  that  held  by  the  English  court  of 
chancery  is  conferred  upon  the  supreme  judicial  court, — a 
jurisdiction  absolutely  unrestricted  and  unlimited  save  by 
the  principles  inherent  in  the  system  of  equity  jurispru- 
dence itself,^  and  except,  perhaps,  with  respect  to  some  par- 
ticular matters,  by  positive  mandatory  provisions  of  other 
statutes  of  the  state.i  The  supreme  judicial  court  is  now 
a  tribunal  of  general  equitable  powers  and  functions.  It 
seems  to  be  wholly  unnecessary,  therefore,  to  examine  the 
course  of  past  decision  and  the  judicial  interpretation  put 
upon  the  prior  series  of  statutes  for  the  purpose  of  ascer- 
taining the  amount  of  equitable  jurisdiction  at  present 
established  in  Massachusetts.  The  act  of  1877  has  swept 
away  the  results  of  more  than  a  half-century  of  careful 
judicial  labor.  It  is  very  important,  however,  to  examine 
this  course  of  past  decision,  and  to  state  in  a  summary 
manner  the  interpretation  given  to  the  prior  statutes,  in 
order  to  show  the  value  of  the  decisions  themselves — many 

§  312,  1  As  an  illustration  of  my  meaning,  it  may  very  well  be  held, 
as  it  is  in  many  other  states,  that,  notwithstanding  this  sweeping  grant 
of  a  general  equitable  jurisdiction,  the  ordinary  jurisdiction  over  admin- 
istrations and  the  settlement  of  decedents'  estates  is  exclusively  given 
by  other  statutes  to  the  courts  of  probate. 

§  312,  (a)  So  held  in  numerous  re-  in  Massachusetts) ;  Niles  v.  Graham, 

cent  cases.     See  Parker  v.  Simpson,  181  Mass.  41,  62  N.  E.  986;  Gorgam 

180  Mass.  334,  62  N.  E.  401   (a  full  v.  Pope  (Mass.),  69  N.  E.  343. 
historical  review  of  the  jurisdiction 


599  JUDICIAL    INTERPRETATION    OF    JURISDICTION.  §  313 

of  them  most  able,  elaborate,  and  learned — as  precedents, 
to  discover  their  probable  bearing  upon  the  future  develop- 
ment of  equity  within  the  state,  and  to  understand  their 
relations  with  the  general  system  of  equitable  jurisdiction 
and  jurisprudence  throughout  the  entire  country.  Unless 
the  methods  of  interpretation  and  of  dealing  with  their 
equitable  powers  pursued  by  the  Massachusetts  judges 
were  described,  and  the  restrictive  effects  necessarily  pro- 
duced by  the  former  legislation  were  explained,  many  of 
these  decisions  would  be  exceedingly  misleading  as  authori- 
ties upon  the  powers  and  doctrines  of  equity  in  other  states. 
I  purpose,  therefore,  to  exhibit,  in  a  very  condensed  and 
summary  form,  the  course  and  results  of  the  judicial  in- 
terpretation put  upon  the  prior  statutory  grants  of  juris- 
diction. 

§  313. a  The  following  single  principle  lies  at  the  basis 
of  and  explains  this  entire  course  of  interpretation,  and 
separates  the  decisions  made  in  it  from  the  equitable  sys- 
tem prevailing  in  any  other  state  except  Maine.  It  has 
been  constantly  asserted  that  the  courts  of  Massachusetts 
possess  no  inherent  equitable  functions  and  authority  what- 
soever, but  are,  in  their  original  creation  and  endowment, 
purely  common-law  tribunals ;  that  all  the  equitable  powers 
which  they  hold  are  those  conferred  by  the  express  terms 
of  some  statute;  that  all  these  statutory  grants  have  been 
coupled  with  the  condition  that  such  powers  shall  only  exist 
in  cases  where  there  is  no  plain,  adequate,  and  certain 
remedy  at  law,  and  this  clause,  instead  of  being  merely 
formal,  is  the  very  test  and  criterion  of  the  jurisdiction, 
limiting  and  restricting  it  on  all  sides,  and  applying  not 
simply  to  the  remedies  known  to  the  ancient  common-law 
system  of  procedure,  but  to  those  legal  remedies  from  time 
to  time  created  and  furnished  by  the  state  legislation.  In 
giving  effect  to  the  statutes,  the  strictest  mode  of  interpre- 

§313,  (a)  This  paragraph  of  the  R.  I.  126,  27  Am.  St.  Rep.  728,  12 
text  is  cited  in  Moulton  v.  Smith,  16       Atl.  891. 


§  313  EQUITY    JURISPRUDENCE.  600 

tation  has  been  uniformly  adopted.  In  following  out  tho 
policy  assumed  to  have  been  intended  by  the  legislature,  it 
has  been  settled  that  the  courts  took  no  powers  nor  jurisdic- 
tion over' any  equitable  right  or  to  administer  any  equitable 
remedy,  except  those  plainly  permitted  by  the  express  and 
positive  language  of  the  statutes;  and  that  this  language 
could  never  be  enlarged  by  judicial  construction,  so  as  to 
include  and  confer  by  implication  any  authority  which  was 
not  thus  expressly  mentioned  in  the  terms  used  by  the  legis- 
lature. This  restrictive  method  of  interpretation  has  been 
pursued  without  any  exception,  and  has  sometimes  pro- 
duced very  strange  results.  Over  all  these  express  grants 
extends  the  clause  limiting  their  operation  to  cases  in  which 
there  is  no  adequate  remedy  at  law.  In  dealing  with  this 
clause  the  courts  have  followed  a  course  directly  opposed 
to  that  adopted  by  the  national  judiciary,  and  have  given 
the  strongest  effect  to  its  restrictive  words.  As  a  neces- 
sary result  of  this  judicial  action,  the  equitable  jurisdiction 
and  jurisprudence  of  Massachusetts  have  been  fragmentary 
in  form,  and  curtailed  and  limited  in  every  portion  and 
with  respect  to  every  kind  of  subject-matter,  unlike  the 
equitable  system  prevailing  in  England  or  in  most  of  the 
other  states. 1  This  peculiar  character  will  doubtless  be 
changed  in  the  future.  To  the  general  description  thus 
given  of  the  jurisdiction  as  it  depended  upon  the  former 
statutes,  I  shall  add  very  briefly  the  results  which  have 
been  reached  with  respect  to  some  of  the  most  important 
subject-matters  of  equitable  cognizance. 

§  313,  1  The  following  cases  are  given  as  examples  of  the  mode  of 
interpretation,  and  illustrations  of  the  principle  described  in  the  text, 
selected  from  several  important  heads  of  the  equitable  jurisprudence: 
Kelleran  v.  Brown,  4  Mass.  443  (equitable  itiortgage) ;  Dwight  v.  Pome- 
roy,  17  Mass.  302,  324,  327,  9  Am'.  Dec.  148,  per  Parker,  C.  J.  (specific 
performance  of  contract) ;  Putnam  v.  Putnam,  4  Pick.  139-141,  per 
Parker,  C.  J.  (bill  of  revivor  to  redeem  a  mortgage) ;  Black  v.  Black, 
4  Pick.  234,  236,  per  Parker,  C.  J.  (implied  or  constructive  trust) ; 
Jones  V.  Boston  Mill  Corp'n,  4  Pick.  507,  509,  511,  512,  per  Parker,  C.  J. 
(specific  performance  of  an  award) ;  Hunt  v.  Maynard,  6  Pick.  489  (re- 


601  JUDICIAL   INTERPKETATION    OF    JURISDICTION.  §  314 

§  314.  Specific  Performance. — The  power  to  decree  the 
specific  execution  of  written  contracts  was  given  by  an 
early  statute,  and  the  provisions  contained  in  the  revision 
of  1873,  quoted  in  the  preceding  section,  confer  this  par- 
ticular jurisdiction  in  ample  terms.  The  courts  have  there- 
fore had  no  difficulty  in  decreeing  the  specific  execution  of 
written  contracts  in  accordance  with  the  settled  doctrines 

deeming  a  mortgage) ;  Campbell  v,  Sheldon,  13  Pick.  8  (lost  deeds  and 
trusts  created  by  foreign  wills) ;  Dimmock  v.  Bixby,  20  Pick.  368,  372 
(assignment  for  the  benefit  of  creditors) ;  Wright  v.  Dame,  22  Pick.  55, 
60,  per  Wilde,  J.  (implied  trust) ;  Eaton  v.  Green,  22  Pick.  526,  529,  531, 
per  Wilde,  J.  (equitable  mortgage) ;  Whitney  v.  Stearns,  11  Met.  319 
(fraud  and  trust) ;  Clarke  v.  Sibley,  13  Met.  210  (equitable  mortgage  or 
lien) ;  Parker  v.  May,  5  Cush.  336,  341  (charitable  trusts) ;  Jacobs  v. 
Peterborough,  etc.,  R.  R.  Co.,  8  Cush.  223,  225  (specific  performance  of 
a  verbal  contract  for  the  sale  of  land) ;  Bowditch  v.  Banuelos,  1  Gray, 
220,  228,  per  Shaw,  C.  J.  (trusts  arising  from  a  deed) ;  Harvard  Coll.  v. 
Society  for  Promoting  Theol.  Education,  3  Gray,  280,  282,  per  Dewey,  J. 
(charitable  trusts);  Treadwell  v.  Cordis,  5  Gray,  341,  348,  per  Shaw, 
C.  J.  (construction  of  a  will  with  trusts) ;  Old  Colony  R.  R.  Co.  v.  Evans, 
6  Gray,  25,  30,  per  Dewey,  J.  (specific  performance  of  a  contract) ;  San- 
born V.  Sanborn,  7  Gray,  142  (specific  performance  of  a  verbal  contract 
for  the  sale  of  land) ;  Miller  v.  Goodwin,  8  Gray,  542  (specific  perform- 
ance against  heirs  and  administrator  of  deceased  vendor) ;  CamiDbell  v. 
Wallace,  10  Gray,  162,  163,  per  Thomas,  J.  (trusts  created  by  a  foreign 
will) ;  Buck  v.  Dowley,  16  Gray,  555,  557,  per  Chapman,  J.  (specific  per- 
formance of  a  verbal  contract,  and  enforcement  of  parol  trusts) ;  BroAvn 
v.  Evans,  6  Allen,  333,  336,  per  Merrick,  J.  (specific  enforcement  of  an 
award) ;  Drury  v.  Inhabitants  of  Natick,  10  Allen,  169,  175  (charitable 
trusts);  Jackson  v.  Phillips,  14  Allen,  539,  593  (charitable  trusts);  Bas- 
sett  v.  Brown,  100  Mass.  355  (no  jurisdiction  at  suit  of  defrauded 
grantor  to  set  aside  a  conveyance  of  land  obtained  by  fraud) ;  Carlton  v. 
City  of  Salem,  103  Mass.  141  (suit  by  taxable  inhabitants  to  restrain 
municipal  officers  from  illegal  acts) ;  Suter  v.  Matthews,  115  Mass.  253 
(no  concurrent  jurisdiction  in  equity  over  cases  of  fraud  Avhere  there  is 
an  adequate  remedy  at  law) ;  Jones  v.  Newhall,  115  Mass.  244,  247,  15 
Am.  Eep.  97,  per  Wells,  J.  (no  jurisdiction  to  compel  the  specific  per- 
formance of  a  contract  at  a  suit  of  the  vendor  when  the  only  substantial 
relief  would  be  the  recovery  of  the  purchase  price,  the  remedy  at  law 
being  held  adequate) ;  Frue  v.  Loring,  120  Mass.  507  (no  jurisdiction  to 
recover  an  amount  of  money  alleged  to  be  due  in  consequence  of  an  im- 
plied trust,  the  remedy  af  law  being  adequate).     I  have  purposely  ar- 


§  314  EQUITY    JURISPRUDENCE.  G02 

of  equity  jurisprudence  between  the  original  parties,^  and 
in  favor  of  an  assignee  of  the  vendee  against  the  vendor,^ 
and  in  favor  of  the  heirs  and  administrator  of  a  deceased 
vendee,  or  against  the  heirs  and  administrator  of  a  de- 
ceased vendor.^  The  jurisdiction  did  not,  however,  include 
the  specific  execution  of  awards,^  nor  of  verbal  contracts 
for  the  sale  of  land  on  the  ground  of  part  performance. ^ 
In  one  of  the  recent  cases  it  was  held,  after  a  very  elaborate 
examination  of  the  legislative  system  and  policy,  that  there 
was  no  jurisdiction  to  decree  the  specific  performance  of 
a  contract  on  behalf  of  the  vendor  when  the  only  substantial 
relief  to  be  obtained  was  the  payment  of  the  purchase- 
money  by  the  vendee.^ 

ranged  these  cases  in  the  order  of  their  dates,  rather  than  according  to 
their  subject-matters,  so  that  the  method  of  interpretation  running 
through  them  might  be  the  more  clearly  shown.  It  will  be  seen  that  in 
the  very  latest  ones  of  the  series,  decided  after  the  powers  of  the  court 
had  been  so  much  enlarged  by  successive  statutes,  the  principle  of  inter- 
pretation concei-ning  the  equitable  jurisdiction  stated  in  the  text  was 
asserted  with  even  greater  emphasis  than  in  the  earlier  cases. 

§  314,  1  Dwight  V.  Pomeroy,  17  Mass.  302,  327,  9  Am.  Dec.  148 ;  Salis- 
bury V.  Bigelow,  20  Pick.  174 ;  Hilliard  v.  Allen,  4  Cush.  532,  535 ;  Old 
Colony  R.  R.  Co.  v.  Evans,  6  Gray,  25,  30,  66  Am.  Dec.  394;  Boston  & 
Me.  R.  R.  V.  Bartlett,  10  Gray,  384. 

§  314,  2  Currier  v.  Howard,  14  Gray,  511. 

§  314,  3  Reed  v.  Whitney,  7  Gray,  533 ;  Miller  v.  Goodwin,  8  Gray, 
542;  Davis  v.  Pope,  12  Gray,  193,  197;  Bell  v.  City  of  Boston,  101  Mass. 
506,  511. 

§314,  4  Jones  v.  Boston  Mill  Corp'n,  4  Pick.  507,  512;  Brown  v. 
Evans,  6  Allen,  333,  336;  Howe  v.  Nickerson,  14  Allen,  400,  406. 

§  314,  5  This  ruling  was  placed  upon  the  ground  that  the  express  terms 
of  the  statute  only  mentioned  written  contracts;  and  the  court  refused 
to  exercise  any  enlarged  powers  by  implication  from  other  heads  of  the 
statutory  jurisdiction:  Dwight  v.  Pomeroy,  17  Mass.  302,  9  Am.  Dec. 
148;  Jacobs  v.  Peterborough,  etc.,  R.  R.,  8  Cush.  223,  225;  Sanborn  v. 
Sanborn,  7  Gray,  142 ;  Buck  v.  Dowley,  16  Gray,  555,  557. 

§  314,  6  Jones  v.  Newhall,  115  Mass.  244.  In  this  opinion  the  statu- 
tory restriction  to  cases  where  there  is  no  adequate  remedy  at  law  was 
applied  with  great  stringency  and  in  a  very  general  manner.  And  there 
is  no  jurisdiction  to  compel  the  specific  performance  by  the  vendee  of 
an  agreement  to  purchase  certain  stocks :  Noyes  v.  Marsh,  123  Mass.  286 ; 


603  JUDICIAL    INTERPRETATION    OF    JURISDICTION.  §  315 

§  315.  Trusts.— The  statute  of  1817  gave  power  to  the 
supreme  court  to  determine  in  equity  ''all  cases  of  trust 
arising  under  deeds,  wills,  or  in  the  settlement  of  estates." 
This  language  was  afterwards  enlarged  into  the  provision 
contained  in  the  revision  of  1873,  quoted  in  the  preceding 
section:  ''Suits  and  proceedings  for  the  enforcing  and 
regulating  the  execution  of  trusts,  whether  the  trusts  relate 
to  real  or  personal  estate."  Under  the  first  of  these  stat- 
utes the  equitable  powers  of  the  courts  were  exceedingly- 
narrow.  They  held  that  their  jurisdiction  embraced  only 
trusts  expressly  created  by  the  terms  of  a  will  or  deed,  and 
they  refused  to  extend  it  by  implication  to  resulting,  con- 
structive, and  implied  trusts,  or  even  to  those  created  by 
foreign  wills. ^  By  the  second  form  of  the  statute,  the 
jurisdiction  over  this  subject  was,  of  course,  greatly  en- 
larged. It  embraced  not  only  cases  of  ordinary  express 
trusts  created  by  the  terms  of  a  deed  or  will,  but  assign- 
ments for  the  benefit  of  creditors,  charitable  trusts,  and 
resulting,  implied,  or  constructive  trusts,  as  recognized  by 
the  doctrines  of  equity  jurisprudence.  The  court  exercised 
a  power  to  compel  the  due  performance  of  a  trust  at  the 
suit  of  the  beneficiary,  and  to  give  construction  to  an  in- 
strument creating  a  trust,  and  to  define  the  nature  of  a 
trust,  and  direct  the  trustees  in  the  discharge  of  their  fidu- 
ciary duties,  and  to  appoint  trustees.  But  still  the  juris- 
diction was  held  not  to  be  commensurate  in  its  extent  with 
that  general  power  over  trusts  belonging  to  the  unlimited 
system  of  equity  jurisprudence,  and  possessed  by  the  Eng- 
lish court  of  chancery.  The  statutorj^  grant  was  restricted 
by  the  clause  confining  its  operation  to  cases  where  there 

citing  Thomdike  v.  Locke,  98  Mass.  340;  Somerby  v.  Buntin,  118  Mass. 
279,  287,  19  Am.  Eep.  459;  Jones  v.  Newhall,  115  Mass.  244;  nor  to  en- 
force an  agi'eement  to  submit  matters  to  arbitration :  Pearl  v.  Harris, 
121  Mass.  390. 

§  315,  1  Black  v.  Black,  4  Pick.  234,  236  (implied  and  resulting  trusts) ; 
Hunt  V.  Maynard,  6  Pick.  489  (no  trust  created  by  a  mortgage  in  favor 
of  the  mortgagor) ;  Campbell  v.  Sheldon,  13  Pick.  8  (tmst  created  by  a 
I'oreign  will). 


§  316  EQUITY   JURISPKUDENCE.  604 

was  no  adequate  remedy  at  law.  The  Massachusetts  courts 
liave  therefore  denied  the  existence  of  an  equitable  juris- 
diction even  in  cases  of  trust,  where  the  substantial  relief 
would  be  the  payment  of  money  due  under  a  trust  relation, 
which  could  be  recovered  by  an  action  at  law  for  money 
had  and  received.^ 

§  316.  Mortgages. — The  earliest  grant  of  an  equitable 
jurisdiction,  continued  in  the  General  Laws  of  1873,  pro- 
vides merely  for  the  redemption  and  foreclosure  of  mort- 
gages, although  a  later  statute  adds  **  cases  of  the  convey- 

§  315,  2  Dimmoek  v.  Bixby,  20  Pick.  368,  372  (assignment  for  the 
benefit  of  creditors);  Wright  v.  Dame,  22  Pick.  55;  National  Mahaiwc 
Bank  v.  Barry,  125  Mass.  20  (implied  trust) ;  Parker  v.  May,  5  Cush. 
336;  Harvard  College  v.  Society  for  Theological  Education,  3  Gray,  280, 
282 ;  Drury  v.  Inhabitants  of  Natiek,  10  Allen,  169 ;  Jackson  v.  Phillips, 
14  Allen,  539,  593  (charitable  trusts) ;  Sears  v.  Hardy,  120  Mass.  524 
(resulting  trust).  The  following  are  cases  of  express  trusts  under  a 
deed  or  will,  or  of  the  construction  of  a  will  creating  trusts :  First  Con- 
gregational Society  v.  Trustees,  etc.,  23  Pick.  148;  Hooper  v.  Hooper, 
9  Cush.  122,  127;  Bowditeh  v.  Banuelos,  1  Gray,  220,  228,  per  Shaw, 
C.  J.;  Treadwell  v.  Cordis,  5  Gray,  341,  348;  Russell  v.  Loring,  3  Allen, 
121,  125,  per  Dewey,  J.  But  under  this  statutory  grant  it  was  held  that 
there  was  no  jurisdiction  over  a  case  of  fraudulent  conversance  of  his 
land  by  a  debtor  on  the  ground  of  a  resulting  or  constructive  trust  aris- 
ing therefrom  in  favor  of  the  defrauded  creditors :  Whitney  v.  Stearns, 
11  Met.  319 ;  nor  a  jurisdiction  to  enforce  a  mere  equitable  lien  or  mort- 
gage on  the  ground  of  an  implied  trust:  Clarke  v.  Sibley,  13  Met.  210; 
nor  to  enforce  performance  of  an  express  trust  created  by  a  foreign 
will:  Campbell  v.  Wallace,  10  Gray,  162,  163;  nor  to  enforce  a  parol 
trust:  Buck  v.  Dowley,  16  Gray,  555,  557.  Finally,  in  Fi-ue  v.  Loring, 
120  Mass.  507,  the  court  decided  that  there  was  no  equitable  jurisdiction 
to  recover  an  amount  of  money,  where  the  liability  gi'ew  out  of  a  trust 
or  trust  relation,  since  the  legal  remedy  by  action  for  money  had  and 
received  was  adequate.  Under  its  general  jurisdiction  over  trusts  the 
court  may  appoint  a  trustee,  although  no  express  provision  for  an  ap- 
pointment is  made  by  the  statute,  nor  is  contained  in  the  instiiiment 
creating  the  trust:  In  re  Eastern  R.  R.,  120  Mass.  412;  citing  Bowditeh 
V.  Banuelos,  1  Gray,  220,  228;  Bailey  v.  Kilbum,  10  Met.  176,  43  Am. 
Dec.  423 ;  Winslow  v.  Cummings,  3  Cush.  358 ;  Felch  v.  Hooper,  119  Mass. 
52;  Parker  v.  Parker,  118  Mass.  110;  Ellis  v.  Boston,  H.  &  E.  R.  R.,  107 
Mass.  1;  and  see  also  Attorney-General  v.  Barbour,  121  Mass.  568. 


(305  JUDICIAL    INTERPRETATION    OF    JURISDICTION.  §  317 

ance  or  transfer  of  real  estate  in  the  nature  of  mortgage." 
It  Las  been  decided  that  the  former  of  these  clauses  is  con- 
fined in  its  operation  to  mortgage  deeds  by  which  the  legal 
estate  is  conveyed  to  the  mortgagee  according  to  the 
common-law  theory;  and  the  court  has  repeatedly  denied 
the  existence,  by  implication  from  this  or  other  statutory 
grants,  of  any  jurisdiction  to  enforce  or  redeem  equitable 
mortgages  or  equitable  liens. ^  Of  the  power  to  redeem  or 
to  foreclose  legal  mortgages,  there  was  no  question. 2  This 
narrow  jurisdiction  has,  beyond  a  doubt,  been  enlarged  by 
the  later  enactment  above  mentioned.  Thus  it  is  held  that 
the  court  may,  in  a  proper  equitable  suit  for  that  purpose, 
declare  a  deed  of  land  absolute  on  its  face  to  be  a  mortgage, 
and  decree  a  redemption  and  reconveyance. ^ 

§  317.  Creditors'  Suits. — The  power  to  aid  creditors  in 
reaching  the  property  of  their  debtors  is  given  by  the  stat- 
ute  in  very  broad   terms.     In  addition   to   the   ordinary 

§  316,  1  Kclleran  v.  Brown,  4  Mass.  443,  444,  per  Parsons,  C.  J. ;  Eaton 
V.  Green,  22  Pick.  526,  529,  per  Wilde,  J. ;  Clarke  v.  Sibley,  13  Met.  210, 
214,  per  Wilde,  J. 

§  316,  2  Saunders  v.  Frost,  5  Pick.  259,  267,  16  Am.  Dec.  394,  per 
Parker,  C.  J. ;  Boyden  v.  Partridge,  2  Gray,  190  (suit  to  redeem  a  mort- 
gage and  to  set  aside  a  release  of  the  equity  of  redemption  obtained  by 
fraud) ;  Shaw  v.  Norfolk  Co.  R.  R.,  5  Gray,  162,  182  (foreclosure  of  a 
railroad  mortgage) ;  Putnam  v.  Putnam,  4  Pick.  139,  140,  per  Parker, 
C.  J.  (redeeming  a  mortgage  by  a  bill  of  revivor). 

In  King  v.  Bronson,  122  Mass.  122,  the  jurisdiction  to  set  aside  a  sale 
of  the  mortgaged  premises  made  under  a  power  of  sale  contained  in  the 
mortgage,  and  to  redeem,  was  fully  admitted,  but  the  relief  was  refused 
on  the  facts.  Where  a  mortgage  is  given  to  secure  an  indebtedness 
arising  from  an  agi-eement  illegal,  as  being  in  violation  of  the  bankrupt 
law  and  in  fraud  of  other  creditors,  the  mortgage  itself  is  also  tainted 
with  the  illegality,  and  the  mortgagee  can  maintain  no  suit  to  redeem  a 
prior  mortgage :  Blasdel  v.  Fowle,  120  Mass,  447,  21  Am.  Rep.  533.  With 
respect  to  the  foreclosure  and  redemption  of  mortgages  of  personal 
property  under  the  Massachusetts  statutes,  see  Burtis  v.  Bradford,  122 
Mass.  129,  131;  Bushnell  v.  Avery,  121  Mass.  148;  Boston,  etc..  Iron 
Works  V.  Montag-ue,  108  Mass.  248. 

§  316,  3  Hassam  v.  Barritt,  115  Mass.  256.  The  relief  was  refused  on 
the  facts,  but  the  jurisdiction  was  fully  admitted. 


§  318  EQUITY   JURISPRUDENCE.  606 

"creditors'  suits"  by  judgment  creditors  whose  executions 
have  been  returned  unsatisfied,  for  the  purpose  of  reach- 
ing equitable  assets  or  impeaching  fraudulent  transfers, 
it  is  held  that  a  suit  may  be  maintained  by  a  creditor  to 
reach  any  property,  interest,  or  right,  legal  or  equitable, 
of  his  debtor,  which  cannot  be  come  at  so  as  to  be  attached 
or  taken  on  execution,  even  though  the  complainant  has  not 
exhausted  his  legal  remedies,  nor  put  his  demand  into  the 
form  of  a  judgment.^ 

§  318.  Fraud. — For  a  considerable  time  there  was  no 
statutory  grant  of  any  jurisdiction  expressly  on  the  ground 
of  fraud;  but  subsequently  the  provision  was  adopted  in 

§  317,  1  Bresnihan  v.  Sheehan,  125  Mass.  11  (1878).  A  wife  secretly 
accumulated  her  husband's  wages  placed  in  her  hands  for  safe-keeping, 
and  used  tlie  amount,  with  other  money  of  her  own,  in  the  purchase  of 
a  piece  of  land,  taking  the  title  in  her  own  name.  Held,  that  the  hus- 
band had  an  equitable  interest  in  the  land,  and  a  creditor  could  maintain 
the  suit  described  in  the  text.  Colt,  J.,  said:  "A  creditor  may  maintain 
a  bill  in  equity  to  reach  any  property,  right,  title,  or  interest,  legal  or 
equitable,  of  the  debtor  which  cannot  be  come  at  to  be  attached  or  taken 
on  execution.  He  may  thus  reach  the  equitable  assets  of  his  debtor 
without  having  exhausted  his  remedies  at  law  or  reduced  his  claim  to  a 
judgment";  citing  Tucker  v.  McDonald,  105  Mass.  423.  With  respect 
to  "creditors'  suits,"  ordinarily  so  called,  Trow  v.  Lovett,  122  Mass.  571, 
decides  that  a  judgment  creditor  who  has  not  issued  an  execution  does 
not  by  filing  a  creditor's  bill  under  the  statute  of  1875  (General  Laws, 
quoted  in  preceding  section),  to  reach  land  fraudulently  conveyed  by  his 
debtor,  acquire  a  lien  thereon.  In  Massachusetts  a  judgment  does  not 
create  a  lien  on  land.  To  create  an  eqxiitable  lien  upon  land  of  the 
debtor  fraudulently  transferred,  the  creditor  must  exhaust  his  legal 
remedies,  or  must  at  least  issue  an  execution:  Wiggin  v.  Heywood,  118 
Mass.  514;  the  same  rule  as  that  laid  down  in  Beck  v.  Burdett,  1  Paige, 
305,  19  Am.  Dec.  436 ;  Crippen  v.  Hudson,  13  N.  Y.  161 ;  Jones  v.  Green, 
1  Wall.  330. 

In  Massachusetts,  land  conveyed  away  by  a  debtor  in  fraud  of  his 
creditors  can  be  attached  and  taken  on  execution.  Prior  to  the  act  of 
1875,  above  mentioned,  this  was  the  only  mode  of  reaching  such  prop- 
erty, and  there  was  no  jurisdiction  to  maintain  a  suit  in  equity,  on 
behalf  of  a  creditor,  to  enforce  his  demand  against  the  lands:  Taylor  v. 
Robinson,  7  Allen,  253 ;  Mill  River  Ass'n  v.  Claflin,  9  Allen,  101. 


607  JUDICIAL   INTERPRETATION    OF    JURISDICTION.  §  318 

broad  terms,  which  is  now  found  in  the  General  Laws  of 
1873,  namely,  "cases  of  fraud."  Prior  to  this  statute,  the 
courts  unifonnly  denied  the  existence  of  an  authority  to 
administer  equitable  rights  or  remedies  directly  growing 
out  of  fraud,  and  they  only  dealt  with  fraud  as  it  arose  in- 
cidentally in  cases  belonging  to  some  other  head  of  equi- 
table jurisdiction.!  Full  jurisdiction  was  undoubtedly 
given  by  the  subsequent  statute  in  ''cases  of  fraud";  but 
the  qualifications  stated  in  a  former  paragraph  concerning 
"trusts"  will  apply  to  it  with  equal  force.  The  exercise 
of  the  jurisdiction  has  been  limited  by  the  clause  so  often, 
quoted,  and  the  courts  have,  until  quite  recently,  shown  a 
strong  tendency  to  confine  it  within  narrow  bounds. ^ 

§  318,  1  Boyden  v.  Partridge,  2  Gray,  190.  And  see  other  cases  cited 
ante,  in  note  under  §  313 ;  Woodman  v.  Saltonstall,  7  Gush.  181 ;  Thayer 
V.  Smith,  9  Met.  469. 

§318,  2  Jurisdiction  denied:  Bassett  v.  Brown,  100  Mass,  355;  Suter 
V.  Matthews,  115  Mass.  253 ;  White  v.  Thayer,  121  Mass.  226,  228 ;  citing 
Boardman  v.  Jackson,  119  Mass.  161;  Lewis  v.  Gocks,  23  Wall.  466.  In 
Bassett  v.  Brown,  100  Mass.  355,  and  White  v.  Thayer,  121  Mass.  226, 
228,  it  was  held  that  there  was  no  jurisdiction  of  a  suit  on  behalf  of  the 
grantor  to  set  aside  a  deed  of  land  procured  from  him  by  fraud,  since 
the  land  could  be  recovered  by  an  action  at  law, — a  writ  of  entry;  and 
in  Suter  v.  Matthews,  115  Mass.  253,  the  court  laid  down  the  general 
doctrine  that  there  was  no  concurrent  equitable  jurisdiction  in  cases 
growing  out  of  fraud  where  the  remedy  at  law  was  adequate,  and  there- 
fore a  suit  couuld  not  be  maintained  to  recover  money  obtained  through 
fraud. 

Jurisdiction  exercised:  Gilson  v.  Hutchinson,  120  Mass.  27;  Gheney  v. 
Gleason,  125  Mass.  166;  Smith  v.  Everett,  126  Mass.  304;  Fuller  v.  Per- 
cival,  126  Mass.  381.  In  Gilson  v.  Hutchinson,  120  Mass.  27,  a  husband 
had  conveyed  his  land  without  consideration  and  on  a  secret  verbal 
trust  to  defendant,  for  the  purpose  of  defrauding  his  wife  of  her  dower, 
and  died  before  obtaining  a  reconveyance.  His  widow  was  appointed 
administratrix,  and  at  her  suit  the  transfer  to  the  defendant  was  set 
aside  and  the  title  vested  in  the  husband's  heirs.  In  Gheney  v.  Gleason, 
125  Mass.  166,  the  plaintiff,  through  fraud  of  an  agent,  had  been  induced 
to  convey  his  land  to  A,  who  was  privy  to  the  fraud,  and  to  take  in 
payment  certain  securities  which  were  worthless.  The  land  having  been 
again  conveyed  to  B,  an  innocent  purchaser,  the  court  sustained  a  suit 
by  the  plaintiff  to  reach  a  mortgage  for  the  purchase  price  given  back 


§  319  EQUITY   JURISPKUDENCE.  608 

§  319.  Other  Special  Cases. — In  addition  to  the  forego- 
ing important  branches  of  equity  jurisprudence,  the  follow- 
ing are  some  of  the  other  subjects  over  which  the  statutory 
jurisdiction  has  been  exercised,  although  the  courts  have, 
in  every  instance,  steadily  adhered  to  the  principle  that  no 
equitable  jurisdiction  existed  in  cases  where  an  adequate 
remedy  could  be  obtained  by  an  action  or  proceeding  at  law. 
The  jurisdiction  has  been  upheld,  in  this  somewhat  guarded 
manner,  to  restrain  or  abate  nuisances  of  various  kinds  ;i 
to  grant  the  remedy  of  injunction  in  a  variety  of  circum- 
stances,— as,  for  example,  to  restrain  nuisances  and  other 
such  tortious  acts,  to  prevent  the  violation  of  contracts,  to 
prevent  the  use  and  transfer  of  securities  fraudulently  ob- 
tained, and  to  prevent  the  accomplishment  of  other  fraudu- 
lent transactions ;  to  restrain  actions  or  judgments  at  law  ;2 
in  suits  for  an  accounting  under  the  strict  limitation  that 

by  B  to  A,  and  for  damages.  In  Smith  v.  Everett,  126  Mass.  304,  the 
defendant,  by  fraudulent  representations,  procured  the  plaintiff  to  enter 
into  a  co-partnership  for  a  definite  period.  Held,  that  the  court  had 
jurisdiction  to  decree  a  cancellation  of  the  partnership  agreement,  and 
to  enjoin  the  defendant  from  using  the  firm  name;  and  having  thus  ob- 
tained jurisdiction  of  the  case,  it  would  give  full  relief  by  ordering  a 
repayment  of  all  moneys  advanced  or  expended  by  the  plaintiff  on  ac- 
count of  the  firm.  In  Fuller  v.  Percival,  126  Mass.  381,  a  promissory 
note  having  been  obtained  by  fraud,  a  suit  by  the  defrauded  maker  was 
sustained  to  enjoin  the  payee  from  transferring  the  note,  and  to  compel 
its  surrender  and  cancellation.  The  court,  by  these  decisions,  has  cer- 
tainly shown  a  much  more  liberal  tendency  in  the  exercise  of  its 
jurisdiction. 

§  319,  1  Such  as  interferences  with  water  rights,  rights  of  way,  and 
other  easements  or  servitudes:  Jenks  v.  Williams,  115  Mass.  217;  Cadi- 
gan  v.  Brown,  120  Mass.  493;  Atlanta  Mills  v.  Mason,  120  Mass.  244; 
Breed  v.  City  of  Lynn,  126  Mass.  367;  Tucker  v.  Howard,  122  Mass.  529; 
Woodward  v.  City  of  Worcester,  121  Mass.  245. 

§  319,  2  The  remedy  of  injunction  seems  to  have  been  used  by  the 
Massachusetts  courts  with  some  freedom.  To  restrain  private  nui- 
sances: Jenks  V.  Williams,  115  Mass.  217;  Cadigan  v.  Brown,  120  Mass. 
493;  Atlanta  Mills  v.  Mason,  120  Mass.  244;  Woodward  v.  Worcester, 
121  Mass.  245 ;  Tucker  v.  Howard,  122  Mass.  529 ;  Breed  v.  Lynn,  126 
Mass.  367 ;  to  restrain  unlawful  use  of  water-power  by  a  mill-owner : 
Agawam  Canal  Co.  v.  Southworth  Mfg.  Co.,  121  Mass.  98;  to  prevent  a 


609  JUDICIAL    INTERPRETATION    OF    JURISDICTION.  §  319 

an  accounting  in  equity  is  really  necessary,  because  no  ade- 
quate remedy  can  be  obtained  at  law;^  to  reform  deeds  and 
other  written  instruments  in  which  there  was  a  mutual  mis- 
take as  to  some  matter  of  fact.*     Other  instances  in  which 

violation  of  a  contract  by  which  defendant  had  sold  his  stock  in  trade 
and  good-will  to  the  plaintiff,  and  had  agreed  not  to  carry  on  the  same 
business  at  the  same  place,  under  a  liability  for  one  thousand  dollars  as 
liquidated  damages  in  case  of  a  breach :  Ropes  v.  Upton,  125  Mass.  258 ; 
citing  Angier  v.  Webber,  14  Allen,  211,  92  Am.  Dec.  748;  Dwight  v. 
Hamilton,  113  Mass.  175;  Boutelle  v.  Smith,  116  Mass.  Ill;  to  restrain 
the  transfer  of  negotiable  instruments  obtained  by  fraud:  Fuller  v. 
Percival,  126  Mass.  381;  citing  Hamilton  v.  Cummings,  1  Johns.  Ch.  517; 
Commer.  Ins.  Co.  v.  McLoon,  14  Allen,  351;  Martin  v.  Graves,  5  Allen, 
601;  to  restrain  a  fraudulent  use  of  plaintiff's  name  as  a  partner:  Smith 
V.  Everett,  126  Mass.  304;  to  restrain  an  unlawful  use  of  plaintiff's 
trade-mark  or  an  imitation  thereof:  Gelman  v.  Hunnewell,  122  Mass. 
139  (the  opinion  in  this  case  contains  an  elaborate  discussion  of  the  law 
concerning  trade-marks,  with  a  full  citation  of  authorities)  ;  to  prevent 
the  use  of  a  mistaken  deed,  and  to  restrain  an  action  at  law  to  recover 
on  its  covenants:  Wilcox  v,  Lucas,  121  Mass.  21. 

§  319,  3  Badger  v.  McNamara,  123  Mass.  117,  119.  The  jurisdiction 
in  this  case  was  denied  upon  the  facts.  Gray,  C.  J.,  stating  the  rule  as 
follows:  "In  order  to  maintain  a  bill  in  equity  for  an  accounting,  it 
must  appear  from  the  specific  allegations  that  there  was  a  fiduciary  rela- 
tion between  the  parties,  or  that  the  account  is  so  complicated  that  it 
cannot  be  conveniently  taken  in  an  action  at  law.  The  general  allegation 
that  the  account  is  of  such  a  character  is  not  sufficient  to  sustain  the  juris- 
diction in  Massachusetts" ;  citing  Frue  v.  Loring,  120  Mass.  507 ;  Blood  v. 
Blood,  110  Mass.  545 ;  Fowle  v.  Lawrason,  5  Pet.  495 ;  Dinwiddie  v.  Bailey, 
6  Ves.  136;  Foley  v.  Hill,  2  H.  L.  Cas.  28;  Smith  v.  Leveaux,  2  De  Gex, 
J.  &  S.  1 ;  Moxon  v.  Bright,  L.  R.  4  Ch.  292.  This  suit  was  brought  by  a 
consignor  of  goods  sent  to  be  sold  against  the  commission  merchant  for 
an  account  of  the  proceeds,  and  especially  of  the  commissions  retained ; 
and  it  was  held  that  the  case  was  wholly  unlike  suits  between  pai-tners  or 
persons  between  whom  accounts  are  settled  in  the  same  manner  as  those 
of  partners,  requiring  mutual  charges  and  credits,  as  in  Bartlett  v.  Parks, 
1  Cush.  82;  Hallett  v.  Cumston,  110  Mass.  32.  No  suit  for  an  accounting 
growing  out  of  a  business  or  trading  or  transaction  in  which  the  parties 
were  engaged  which  is  illegal:  Snell  v.  Dwight,  120  Mass.  9;  Dunham  v. 
Presby,  120  Mass.  285. 

§  319,  4  Reforming  a  mistaken  deed :  Wilcox  v.  Lucas,  121  ]\Iass.  21 ; 
citing  Glass  v.  Hulbert,  102  Mass.  24 ;  3  Am.  Rep.  418 ;  Jones  v.  Clifford, 
1—39 


§  320  EQUITY   JURISPRUDENCE.  610 

tlie  jurisdiction  has  been  exercised  under  special  circum- 
stances or  for  special  reliefs  are  collected  in  the  foot-note.^ 

§  320.  Many  important  subjects,  in  respect  of  which  the 
equitable  jurisdiction  has  been  denied,  are  mentioned  in 
the  foregoing  paragraphs.  It  has  also  been  decided  that  a 
court  of  equity  either  has  no  jurisdiction,  or  will  not  exer- 
cise any,  under  the  following  circumstances,  or  for  the  fol- 

L.  R.  3  Ch,  Div.  792.  But  there  is  no  equitable  jurisdiction  to  recover 
back  money  paid  through  mistake;  as  where  the  grantee,  through  a  mis- 
take as  to  the  amount,  had  paid  too  large  a  sum  of  purchase-money,  it 
was  held  that  no  suit  in  equity  could  be  maintained  to  recover  back  the 
excess,  since  the  remedy  at  law  by  an  action  for  money  had  and  received 
was  ample:  Pickman  v.  Trinity  Church,  123  Mass.  1,  25  Am.  Rep.  1. 

§  319,  5  Cases  "where  there  are  more  than  two  parties  having  distinct 
rights  or  interests  which  cannot  be  justly  decided  in  one  action  at  law" : 
Gen.  Laws  1873,  chap.  113,  §  2,  subd.  6 ;  Carr  v.  Silloway,  105  Mass.  543, 
549;  Hale  v.  Cushman,  6  Met.  425;  and  see  McNeil  v.  Ames,  120  Mass. 
481.  When  a  suit  in  equity  will  or  will  not  be  retained  to  assess  and 
decree  payment  of  the  plaintiff's  damages,  the  special  relief  demanded 
being  impracticable :  Milkman  v.  Ordway,  106  Mass.  232 ;  Tainter  v.  Cole, 
102  Mass.  162.  Where  the  plaintiff  was  owner  of  certain  shares  of  the 
stock  of  a  corporation,  and  the  certificate  thereof  was,  without  his  fault, 
fraudulently  transferred  by  means  of  a  forged  power  of  attorney,  and 
was  surrendered,  and  a  new  certificate  issued  by  the  corporation  to  the 
purchaser,  such  original  owner  may  maintain  a  suit  in  equity  against  the 
corporation,  and  may  obtain  a  decree  compelling  it  to  procure  a  like  num- 
ber of  shares  of  its  own  stock,  and  to  issue  a  certificate  therefor  to  the 
plaintiff,  and  to  pay  him  all  the  dividends  which  have  accrued  thereon  in 
the  meantime :  Pratt  v.  Boston,  etc.,  R.  R.  Co.,  126  Mass.  443 ;  citing  Pratt 
V.  Taunton  Copper  Co.,  123  Mass.  110,  25  Am.  Rep.  37;  Machinists'  Nat. 
Bank  v.  Field,  126  Mass.  345;  Salisbury  Mills  v.  Townsend,  109  Mass. 
115;  Loring  v.  Salisbury  Mills,  125  Mass.  138;  Telegraph  Co.  v.  Daven- 
port, 97  U.  S.  369 ;  Duncan  v.  Luntley,  2  Macn.  &  G.  30,  2  Hall  &  T.  78 ; 
Taylor  v.  Midland  R'y  Co.,  28  Beav.  287,  8  H.  L.  Cas.  751;  Holbrook  v. 
New  Jersey  Zinc  Co.,  57  N.  Y.  616.  When  a  suit  may  or  may  not  be 
maintained  for  the  purpose  of  enforcing  an  equitable  set-off:  Spaulding 
V.  Backus,  122  Mass.  553,  23  Am.  Rep.  391  (the  opinion  contains  an 
elaborate  discussion  of  the  doctrine,  with  a  full  citation  and  review  of 
the  authorities). 


61 1  JUDICIAL    INTERPRETATION    OF    JURISDICTION.  §  320 

lowing  purposes:  Over  lost  deeds ;i  in  suits  brought  by 
individual  inhabitants  or  tax-payers  to  compel  the  perform- 
ance of  a  public  duty  by  a  municipal  corporation,  or  by  its 
officers ;  nor  to  restrain  the  collection  of  a  tax  on  the  ground 
of  its  illegality ;2  in  administration  suits,  unless  under  spe- 
cial circumstances;^   in  suits  brought  by  the  assignee  of 

§  320,  1  "This  court  has  no  equity  jurisdiction  in  cases  of  lost  deeds, 
independently  of  some  other  ground  of  equity  jurisdiction":  Campbell  v. 
Sheldon,  13  Pick.  8. 

§  320,  2  Cariton  v.  City  of  Salem,  103  Mass.  141.  And  see  Attorney- 
General  V.  Salem,  103  Mass.  138.  (This  case  construes  the  statute  (Gen. 
Stats.,  chap.  18,  §  79),  which  gives  authority  to  the  court  to  interfere 
under  special  circumstances  at  the  suit  of  not  less  than  ten  taxable  in- 
habitants, and  to  restrain  the  illegal  acts  of  municipal  authorities  in  the 
matter  of  taxation  or  creating  a  public  debt,  but  restricts  the  operation 
of  the  statute  to  the  exact  condition  of  facts  mentioned  by  it;  any  such 
jurisdiction,  independently  of  the  statute,  is  emphatically  denied).  No 
suit  in  equity  can  be  maintained  by  a  trustee  against  two  towns  to  deter- 
mine in  which  one  of  them  he  is  taxable:  Macy  v.  Nantucket,  121  Mass. 
351;  and  there  is  no  jurisdiction  in  equity  to  determine  whether  or  to 
whom  a  tax  is  due,  nor  to  restrain  its  collection.  The  only  remedy  for  an 
illegal  tax  is  for  the  persons  to  pay  it,  and  sue  the  town  or  city  at  law, 
in  order  to  recover  it  back:  Loud  v.  Charlestown,  99  Mass.  208;  Norton 
V.  Boston,  119  Mass.  194. 

§  320,  3  There  is  no  equitable  jurisdiction  to  compel  an  administrator 
to  account  or  for  the  final  accounting  and  settlement  of  decedents'  estates, 
except  under  special  circumstances,  where  adequate  relief  cannot  be  ob- 
tained in  the  court  of  probate:  Wilson  v.  Leishman,  12  Met.  316.  The 
court  said:  "It  was  not  the  intention  of  the  legislature,  by  conferring 
equity  powers  upon  this  court,  to  take  away  or  to  intrench  upon  the  juris- 
diction of  the  probate  court  in  the  settlement  of  estates,  but  distinctly  to 
enable  this  court,  among  other  things,  to  enforce  and  regulate  the  execution 
of  trusts,  whether  relating  to  real  or  personal  estate."  After  showing  that 
all  the  facts  of  this  case  came  within  the  express  powers  conferred  upon 
the  probate  court,  and  all  the  relief  asked,  both  of  an  accounting  and  of 
a  discovery  of  moneys  concealed  by  the  widow,  could  be  effectually  given 
by  that  tribunal,  the  opinion  adds:  "It  is  true  that  this  court  is  expressly 
authorized  to  hear  and  determine  in  equity  'all  suits  and  proceedings  for 
enforcing  and  regulating  the  execution  of  trusts,  whether  the  trust  relate 
to  real  or  personal  estate.'  It  is  also  true  that  a  court  having  general 
equity  jurisdiction  will  treat,  as  a  trustee,  an  administrator  who  has  prop- 
erty in  his  hands  for  the  parties  entitled  according  to  the  statutes  of 


§  320  EQUITY    JURISPRUDENCE.  612 

a  legal  thing  in  action  to  recover  the  amount  due  upon  sucli 
demand,  where  an  action  at  law  can  be  maintained  in  the 
name  of  the  assignor;^  and  in  other  instances  collected  in 
the  foot-note.5 

distribution,  on  the  ^ound  that  the  property  thus  held  is  a  trust,  and 
the  enforcing  of  a  distribution  of  it  is  the  execution  of  a  trust."  But  this 
latter  branch  of  the  jurisdiction  over  trusts  is  not  possessed  by  the  courts 
of  Massachusetts  as  a  part  of  their  limited  equitable  poAvers;  it  has  been 
expressly  conferred  upon  the  probate  courts,  and  will  not  be  assumed  nor 
exercised  by  means  of  any  enlarged  interpretation  put  upon  the  language 
of  the  statutes.  See,  also,  Southwiek  v.  Morrell,  121  Mass.  520;  Sykes  v. 
Meaeham,  103  Mass.  285.  A  creditor  cannot  maintain  a  suit  in  equity 
against  the  administrator  of  his  debtor,  to  recover  a  debt  barred  by  the 
statute  of  limitations,  on  the  ground  that  he  was  a  non-resident  alien,  and 
did  not  learn  of  the  debtor's  death,  etc. 

§  320,  4  A  court  of  equity  will  not  entertain  a  bill  in  equity  by  the 
assignee  of  a  strictly  legal  right,  merely  upon  the  ground  that  he  cannot 
bring  an  action  at  law  in  his  own  name,  nor  unless  it  appears  that  the 
assignor  prohibits  and  prevents  such  action  being  brought  in  his  name, 
or  that  an  action  in  the  assignor's  name  would  not  afford  the  assignee  au 
adequate  remedy:  Walker  v.  Brooks,  12  Mass.  241;  citing  Hammond  v. 
Messinger,  9  Sim.  327,  332,  per  Shadwell,  V.  C.  The  contrary  rule  as 
stated  by  Judge  Story  in  Eq.  Jur.,  §  1057a,  and  in  Eq.  PL,  §  153,  is 
shown  to  be  erroneous.  See  the  elaborate  discussion  and  review  of  the 
decisions  in  the  opinion  at  pages  244-248. 

§  320,  5  Equitable  jurisdiction  does  not  extend  to  cases  of  libel  or 
slander,  or  false  representation  as  to  the  character  or  quality  of  plaintiff's 
property,  or  as  to  his  title  thereto,  which  involves  no  breach  of  trust  or 
contract.  The  plaintiff's  bill  alleged  no  trust  nor  contract,  nor  use  of 
plaintiff's  name,  but  only  that  defendant  had  made  false  and  fraudulent 
representations,  oral  and  written,  that  the  articles  manufactured  by  plain- 
tiff were  an  infringement  of  defendant's  patent  rights,  and  that  plaintiff 
had  been  sued  by  defendant  therefor,  and  that  defendant  had  threatened 
with  suit  divers  persons  who  had  purchased  plaintiff's  said  articles,  pray- 
ing an  injunction,  etc.  Held,  that  there  was  no  equitable  jurisdiction  in 
such  a  case ;  the  jurisdiction  in  cases  of  trade-mark  rests  upon  the  right  of 
property  therein:  Boston  Diatite  Co.  v.  Florence  Manufacturing  Co.,  114 
Mass.  69,  19  Am.  Rep.  310;  Whitehead  v.  Kitson,  119  Mass.  484;  citing 
Gee  V.  Pritchard,  2  Swanst.  402,  413 ;  Seeley  v.  Fisher,  11  Sun.  581,  583 ; 
Fleming  v.  Newton,  1  H.  L.  Cas.  363,  371,  376;  Emperor  of  Austria  v. 
Day,  3  De  Gex,  F.  &  J.  217,  238-241 ;  Mulkem  v.  Ward,  L.  R.  13  Eq.  619. 
The  opinion  of  Malins,  V.  C,  in  Springhead  Spin.  Co.  v.  Riley,  L.  R.  6 


C13      JUDICIAL   INTERPRETATION    OF    JURISDICTION.      §§  321,  322 

§  321.  Jurisdiction  Enlarged  by  Recent  Statute. — The 
partial,  and  in  some  respects  much  limited,  equitable  juris- 
diction which  I  have  thus  sketched  in  outline  is  without 
doubt  greatly  enlarged,  and  perhaps  rendered  complete,  by 
the  statute  of  1877,  quoted  in  the  preceding  section;  and 
several  of  the  cases  referred  to  in  the  foregoing  paragraphs 
or  quoted  in  the  notes  might  now  be  differently  decided. 
Indeed,  the  few  decisions  made  since  that  statute,  although 
not  expressly  referring  to  its  language,  exhibit,  as  it  seems 
to  me,  a  very  evident  purpose  on  the  part  of  the  Massachu- 
setts court  to  exercise  its  equitable  jurisdiction  in  accord- 
ance with  a  much  more  liberal  and  comprehensive  theory 
than  that  which  it  formerly  held,  and  upon  which  it  has 
long  acted. 1  It  is  impossible,  however,  to  state  with  any 
certainty  the  full  effect  of  this  most  recent  enactment. 

§  322.  Maine:  General  Extent  and  Nature — The  Statu- 
tory Construction. — The  course  of  legislation  and  of  judicial 
construction  in  this  state,  on  the  general  subject  of  equity 
jurisdiction,  has  followed  very  clearly  after  that  of  Massa- 
chusetts.    The  provisions   of  the  Massachusetts   statutes 

Eq.  551,  Dixon  v.  Holden,  L.  R.  7  Eq.  488,  and  Rollins  v.  Hinks,  L.  R. 
13  Eq.  355,  was  expressly  criticised  and  rejected.  There  is  no.  jurisdic- 
tion to  compel  a  lessee,  whose  term  has  been  sold  on  execution,  to  deliver 
up  to  the  purchaser — the  plaintiff — the  counterparts  of  his  lease  and 
subleases  which  are  recorded,  and  there  is  no  jurisdiction  under  General 
Laws.  chap.  113,  §  2,  subd.  6,  of  a  suit  by  an  assignee  in  law  of  the  lessee's 
estate  against  the  lessee  who  claims  rent  from  a  subtenant :  McNeil  v. 
Ames,  120  Mass.  481.  In  a  suit  for  discovery  and  relief,  even  if  dis- 
covery be  obtained,  the  relief  will  not  be  granted  when  the  plaintiff  has 
an  adequate  remedy  at  law :  Ward  v.  Peck,  114  Mass.  121,  122.  Gray,  J., 
said :  "This  bill  cannot  be  maintained  for  relief,  because  the  plaintiff  has 
a  plain,  adequate,  and  complete  remedy  at  law  by  an  action  for  money 
had  and  received."  The  notion  that  discovery  can  be  made  the  foundation 
of  a  jurisdiction  in  cases  where  no  jurisdiction  would  otherwise  have  ex- 
isted, is  plainly  rejected  in  Massachusetts. 

§  321,  1  See,  as  illustrations,  Bresnihan  v.  Sheehan,  125  Mass.  11 
(1878);  Ropes  v.  Upton,  125  Mass.  258;  Cheney  v.  Gleason,  125  Mass. 
166;  Smith  v.  Everett,  126  Mass.  304  (1878);  Fuller  v.  Percival,  126 
Mass.  381  (1879) ;  Pratt  v.  Boston,  etc.,  R.  R.,  126  Mass.  443. 


§  322  EQUITY    JURISPEUDENCE.  614 

have  been  copied  almost  identically  by  the  legislature  of 
Maine,  and  the  methods  adopted  by  the  Massachusetts 
courts  have  been  fully  accepted  by  the  judiciary  of  Maine. 
At  an  early  day  the  powers  of  the  supreme  court  to  grant 
distinctively  equitable  relief  according  to  the  modes  of 
chancery  were  extremely  narrow,  extending  to  but  one  or 
two  topics  of  minor  importance.  The  jurisdiction  was 
gradually,  but  very  cautiously,  enlarged  by  successive  acts 
of  the  legislature;  and  these  statutes,  collected,  arranged, 
and  condensed,  form  the  chapter  77,  section  5,  of  the  revi- 
sion of  1871,  which  is  quoted  in  the  notes  of  the  preceding 
section.^  All  of  the  decisions,  with  very  few  exceptions, 
are  the  judicial  construction  given  to  these  legislative 
grants  of  equitable  powers.  This  restrictive  policy  has  re- 
cently been  abandoned.  In  1874  the  legislature  of  Maine, 
in  this  also  following  the  example  of  Massachusetts,  by  a 
brief  enactment,  but  in  comprehensive  terms,  conferred  full 
equity  jurisdiction  and  powers,  with  respect  to  all  matters 
where  the  remedy  at  law  is  not  complete  and  adequate.^ 
We  are  thus  relieved  from  the  necessity  of  a  thorough  and 
accurate  discussion  of  the  reported  decisions  for  the  pur- 
pose of  ascertaining  what  equitable  jurisdiction  is  now  held 
by  the  courts  of  Maine,  and  what  are  the  limitations  upon 
it.  We  need  only  to  inquire  in  a  very  general  manner  what 
amount  of  jurisdiction  has  been  held  and  exercised  prior 
to  the  enlarging  statute  of  1874,  in  order  that  the  true 
meaning  and  force  of  the  reported  cases  as  precedents  may 
be  apprehended,  and  their  application  to  the  general  sys- 
tem of  equity  jurisprudence  may  be  understood.  I  purpose, 
therefore,  to  describe  in  the  briefest  manner  the  theory  of 
interpretation  with  respect  to  its  own  equitable  powers 
uniformly  acted  upon  by  the  supreme  court,  and  to  enumer- 
ate the  most  important  heads  of  equity  jurisdiction  which  it 

asserted  and  exercised  under  the  former  statutes. 

I 

§  322,  1  See  ante,  §  286,  in  notes. 
§  322,  2  See  ante,  §  286,  note. 


615  JUDICIAL   INTERPRETATION    OF    JURISDICTION.  §  323 

§  323.  Througliout  the  whole  series  of  decisions  ren- 
dered in  cases  arising  prior  to  the  act  of  1874,  above  men- 
tioned, the  supreme  court  of  Maine  has  constantly  denied 
the  possession  by  itself  of  a  full,  general,  equitable  jurisdic- 
tion commensurate  with  that  held  by  the  English  court  of 
chancery ;  has  declared  that  its  only  equitable  powers  were 
those  conferred  in  express  terms  by  successive  statutes  of 
the  legislature;  and  in  the  interpretation  of  these  enact- 
ments, has  always  insisted  that  their  language  should  be 
strictly  construed,  and  that  no  equitable  powers  arising  by 
implication  should  be  assumed  or  exercised.  Furthermore, 
these  legislative  grants  were  all  given  under  the  limitation 
that  ''no  adequate  and  certain  remedy  could  be  had  at 
law."  This  limitation  has  invariably  been  regarded  as  con- 
stituting the  test  of  the  jurisdiction;  and  the  principle 
seems  to  have  been  settled  that  even  where  a  case  came 
within  the  very  terms  of  the  statute,  the  equitable  powers 
of  the  court  could  not  be  exercised  if  there  was  also  a  cer- 
tain and  adequate  remedy  at  law.  These  conclusions  are 
fully  sustained  by  the  decisions  cited  in  the  foot-note. ^  The 
very  few  reported  decisions  in  cases  arising  since  the  stat- 
ute of  1874  recognize  the  complete  change  in  the  legislative 

§  323,  1  In  fact  almost  every  eqiaity  case  decided  by  the  court  is  an 
authority  for  the  propositions  of  the  text,  but  in  the  following  the  point 
was  distinctly  presented  and  determined:  Getchell  v.  Jewett,  4  Me.  350, 
359,  per  Mellen,  C.  J.;  Frost  v.  Butler,  7  Me.  225,  231,  22  Am.  Dec.  199; 
French  v.  Sturdivant,  8  Me.  246,  251;  Coombs  v.  Warren,  17  Me.  404, 
408;  Chalmers  v.  Hack,  19  Me.  124,  127;  Danforth  v.  Roberts,  20  Me. 
307;  Thomaston  Bank  v.  Stimpson,  21  Me.  195;  Russ  v.  Wilson,  22  Me. 
207,  209;  Shaw  v.  Gray,  23  Me.  174,  178;  Bubier  v.  Bubier,  24  Me.  42; 
Chase  v.  Palmer,  25  Me.  341 ;  Woodman  v.  Freeman,  25  Me.  531,  532,  543 ; 
Pratt  V.  Thornton,  28  Me.  355,  366,  48  Am.  Dec.  492 ;  Baldwin  v.  Bangor, 
26  Me.  518,  524;  Farwell  v.  Sturdivant,  37  Me.  308;  Hayford  v.  Dyer,  40 
Me.  245 ;  Fletcher  v.  Holmes,  40  Me.  364 ;  York,  etc.,  R.  R.  v.  M3'ers,  41 
Me.  109,  119  >  Fisher  v.  Shaw,  42  Me.  32;  Tucker  v.  Madden.  44  Me.  206, 
215;  McLarren  v.  Brewer,  51  Me.  402,  407;  Stephenson  v.  Davis,  56  Me. 
73;  Crooker  v.  Rogers,  58  Me.  339;  Spofford  v.  B.  &  B.  R.  R.,  66  Me. 
51;  Pitman  v.  Thornton,  65  Me.  469;  Richardson  v.  Woodbury,  43  Me. 
206,  210. 


§  324  EQUITY    JUmSPRUDENCE.  616 

policy  shown  in  that  enactment,  and  seem  to  admit  that  the 
court  is  clothed  by  it  with  the  full  equitable  jurisdiction; 
but  the  extent  and  limits,  if  any,  have  not  yet  been  judicially 
defined. 2  I  shall  now  describe  very  briefly  the  extent  to 
which  the  important  heads  of  jurisdiction  had  been  settled 
under  the  former  statutory  system. 

§  324.  Mortgages. — The  exceedingly  cautious  and  re- 
stricted manner  in  which  the  court  was  accustomed  to  deal 
with  its  equitable  jurisdiction  is  shown  in  the  doctrines 
which  were  settled  concerning  mortgages.  The  only  powers 
which  it  possessed  were  those  given  in  the  clause  expressly 
relating  to  mortgages,  and  could  not  be  enlarged  by  any 
of  the  other  more  general  provisions  conferring  jurisdiction 
in  cases  of  fraud,  trusts,  mistake,  and  the  like ;  and  even 
the  powers  thus  apparently  given  in  very  terms  were 
held  to  be  restricted  by  other  mandatory  portions  of  the 
statutes.  1  In  accordance  with  this  view,  it  was  settled  that 
the  court  had  no  equitable  powers  to  declare  a  deed  of  con- 
veyance of  land  absolute  on  its  face  to  be  in  fact  a  mort- 
gage ;2  nor  any  power  over  equitable  mortgages  or  ven- 
dor's liens  either  to  enforce  them  or  to  redeem  from  them;^ 
nor  any  power  to  entertain  equitable  suits  for  the  fore- 

§  323,  2  See  Rowell  v.  Jewett,  69  Me.  293,  303.  This  suit  was  brought 
to  have  a  deed  absolute  and  unconditional  on  its  face  declared  to  be  a 
mortgage.  It  had  been  well  settled  by  a  series  of  former  decisions  that 
the  court  had  no  jurisdiction  to  grant  such  relief;  that  the  case  came  under 
no  species  of  equitable  powers  given  to  the  court.  This  ruling,  however, 
was  not  followed;  the  former  decisions  were  disregarded,  and  the  relief 
was  granted,  solely  on  the  ground  that  full  equitable  powers  were  now 
held  by  the  court.  The  discussion  of  the  opinion  opens  with  the  follow- 
ing language:  "Prior  to  the  statute  of  1874  giving  this  court  full  equity 
Jurisdiction,"  etc. 

§  324,  1  See  French  v.  Sturdivant,  8  Me.  246,  251,  which  describes  the 
general  jurisdiction  in  equity  over  mortgages. 

§324,  2  Richardson  v.  Woodbury,  43  Me.  206,  210;  Thomaston  Bank 
V.  Stimpson,  21  Me.  195. 

§324,  3philbrook  v.  Delano,  29  Me.  410,  414;  Thomaston  Bank  v. 
Stimpson,  21  Me.  195;  Richardson  v.  Woodbury,  43  Me.  206,  210. 


617  JUDICIAL   INTERPRETATION    OF    JURISDICTION.  §  324 

closure  of  mortgages,  although  jurisdiction  in  "cases  of 
foreclosure"  was  expressly  mentioned  in  the  clause  con- 
ferring equitable  powers,  because  a  proceeding  for  fore- 
closure was  described  and  regulated  by  other  sections  of 
the  statute.*  Some,  if  not  all,  of  these  conclusions  reached 
by  the  court  under  the  former  legislation  must  be  regarded 
as  reversed  and  abrogated  by  the  statute  of  1874.^  The 
only  substantial  equitable  power  over  mortgages  possessed 
by  the  court  was  that  of  entertaining  suits  for  a  redemp- 
tion; and  even  that  such  a  suit  might  be  maintained,  the 
plaintiff  must  have  fully  complied  with  certain  other  statu- 
tory provisions  regulating  the  mode  of  redemption.^     The 

§  324,  4  The  court  said  that  the  legislature  could  not  have  intended  to 
provide  for  two  different  modes  of  foreclosure, — the  statutory  and  the 
suit  in  equity, — and  it  therefore  pronounced  the  clause  giving  equitable 
jurisdiction  "in  cases  of  foreclosure"  to  be  a  mere  nullity:  Gardiner  v. 
Gerrish,  23  Me.  46,  48 ;  Shaw  v.  Gray,  23  Me.  174,  178 ;  Chase  v.  Palmer, 
25  Me.  341,  345 ;  Brown  v.  Snell,  46  Me.  490,  496.  In  Shepley  v.  Atlantic, 
etc.,  R.  R.,  55  Me.  395,  407,  a  special  provision  of  a  railroad  mortgage  in 
favor  of  the  mortgagees  upon  a  default  of  the  mortgagors  was  specifically 
enforced. 

§  324,  5  See  Rowell  v.  Jewett,  69  Me.  293,  303.  A  deed  absolute  on  its 
face  was  held  to  be  a  mortgage,  the  decision  being  expressly  placed  upon 
the  ground  that  now,  under  this  statute,  the  court  has  a  "full  equity  juris- 
diction," the  earlier  cases  and  the  former  rule  having  been  the  results 
solely  of  a  lack  of  equitable  powers  in  the  court. 

§  324,  6  Pitman  v.  Thornton,  65  Me.  469 ;  Shaw  v.  Gray,  23  Me.  174, 
178;  Farwell  v.  Sturdivant,  37  Me.  308;  York,  etc.,  R.  R.  v.  Myers,  41 
Me.  109;  Richardson  v.  Woodbury,  43  Me.  206,  210;  Thomaston  Bank 
V.  Stimpson,  21  Me.  195;  Brown  v.  Snell,  46  Me.  490,  496.  With  respect 
to  the  mode  of  redemption,  who  may  redeem,  and  the  preliminaries  requi- 
site on  the  part  of  the  plaintiff  as  prescribed  by  other  statutory  clauses, 
see  the  following  cases :  True  v.  Haley,  24  Me.  297 ;  Gushing  v.  Ayer,  25 
Me.  383;  Pease  v.  Benson,  28  Me.  336;  Roby  v.  Skinner,  34  Me.  270; 
Sprague  v.  Graham,  38  Me.  328;  Baxter  v.  Child,  39  Me.  110;  Jewett  v. 
Guild,  42  Me.  246;  Mitchell  v.  Burnham,  44  Me.  286,  302;  Stone  v.  Bart- 
lett,  46  Me.  439;  Stone  v.  Locke,  46  Me.  445;  Williams  v.  Smith,  49  Me. 
664;  Crooker  v.  Frazier,  52  Me.  405;  Wing  v.  Ayer,  53  Me.  138;  Pierce 
V.  Faunce,  53  Me.  351;  Phillips  v.  Leavitt,  54  Me.  405;  Randall  v.  Brad- 
ley, 65  Me.  43,  48 ;  Wallace  v.  Stevens,  66  Me.  190 ;  Dinsmore  v.  Savage, 
68  Me.  191,  193;  Rowell  v.  Jewett,  69  Me.  293;  Chamberlain  v.  Lancey, 
60  Me.  230,  233. 


§§325,326  EQUITY    JURISPRUDENCE.  618 

court  seems  to  have  admitted  its  power  to  enforce  the  claim 
of  a  pledgee  of  personal  property  by  an  equitable  suit  for  a 
foreclosure  and  sale  of  the  articles  pledged.'^ 

§  325.  Penalties  and  Forfeitures. — The  jurisdiction  given 
in  general  terms  by  the  statute  to  relieve  from  forfeitures 
and  penalties  seems  to  have  been  admitted  and  exercised 
without  abridgment,  according  to  the  settled  doctrines  of 
equity  jurisprudence. ^ 

§  326.  Specific  Performance. —  The  jurisdiction  under 
the  statute  to  compel  the  specific  performance  of  written 
contracts  for  the  purchase  and  sale  of  land  was  fully  ad- 
mitted and  exercised  wherever  the  terms  of  the  agreement 
were  such  with  respect  to  fairness,  consideration,  certainty, 
reasonableness,  and  the  like,  as  to  bring  the  case  within 
the  well-settled  doctrines  of  equity  jurisprudence;  these 
doctrines  were  adopted  and  acted  upon  as  regulating  the 
jurisdiction. 1  It  was  held,  however,  that  the  court  had  no 
such  equitable  power  to  decree  a  specific  performance,  even 
though  the  agreement  was  in  writing,  where  the  remedy  at 
law  was  adequate, — as,  for  example,  where  the  undertak- 
ing was  in  the  alternative,  either  to  convey  land  or  to  pay 
a  definite  sum  of  money,  not  as  a  penalty,  or  where  the  only 
relief  to  be  obtained  was   damages,^ — nor  the  power  to 

§  324,  7  Boynton  v.  Payrow,  67  Me.  587. 

§  325,  1  Eveleth  v.  Little,  16  Me.  374;  Gordon  v.  Lowell,  21  Me.  251; 
Mai-wick  v.  Andrews,  25  Me.  525;  Downes  v.  Reily,  53  Me.  62;  Sliepley 
V.  Atlantic,  etc.,  R.  R.,  55  Me.  395,  407. 

§326,  1  GetcheU  v.  Jewett,  4  Me.  350,  359,  per  Mellen,  C.  J.;  Stearns 
V.  Hubbard,  8  Me.  320;  Rogers  v.  Saunders,  16  Me.  92,  33  Am.  Dec.  635; 
Haskell  v.  Allen,  23  Me.  448,  451 ;  Bubier  v.  Bubier,  24  Me.  42,  47 ;  Foss 
V.  Haynes,  31  Me.  81,  89 ;  Hill  v.  Fisher,  34  Me.  143,  40  Me.  130 ;  Fisher 
V.  Shaw,  42  Me.  32,  40;  Hull  v.  Sturdivant,  46  Me.  34,  41;  Shepley  v. 
Atlantic,  etc.,  R.  R.,  55  Me.  395,  407;  Portland,  etc.,  R.  R.  v.  Grand 
Trunk  R.  R.  Co.,  63  Me.  90,  99 ;  Snell  v.  Mitchell,  65  Me.  48 ;  Chamber- 
lain V.  Black,  64  Me.  40;  Roxbury  v.  Huston,  37  Me.  42;  against  grantee 
of  the  vendor :  Linscott  v.  Buck,  33  Me.  530,  534 ;  Foss  v.  Haynes,  31  Me. 
81,  89. 

§  326,  2  Contracts  in  the  alternative :  Fisher  v.  Shaw,  42  Me.  32 ;  re- 
lief of  damages:  Haskell  v.  Allen,  23  Me.  448,  451;  Marston  v.  Hum- 


619      JUDICIAL    INTERPRETATION    OF    JURISDICTION.      §§327,328 

compel  the  specific  performance  of  a  verbal  agreement  for 
the  sale  of  land  on  the  ground  of  its  part  performance.^ 

§  327.  Fraud. — The  jurisdiction  to  grant  the  equitable 
reliefs  directly  arising  from  frauds  was  fully  admitted, 
since  it  was  given  in  very  general  language  by  the  statute. ^ 
But  the  court  steadily  refused  to  extend  the  jurisdiction 
over  frauds  by  implication  to  other  matters  which  were  not 
within  the  express  terms  of  some  statutory  grant,  or  for 
which  there  was  an  adequate  remedy  at  law;  and  for  this 
reason  it  denied  the  existence  of  any  equitable  powers  in 
cases,  even  of  actual  fraud,  where  the  only  relief  to  be  ob- 
tained was  a  recovery  of  damages.^ 

§  328.  Creditors '  Suits. — Ample  authority  to  entertain 
these  suits  is  given  by  a  statute;  but,  independently  of 
this  special  enactment,  and  under  the  general  jurisdiction 
in  cases  of  fraud,  the  court  exercised  a  power  to  relieve 

phrey,  24  Me.  513,  517.  Nor  can  the  court  decree  a  specific  performance 
when  the  plaintiff  has  already  recovered  a  judgment  at  law  upon  the 
contract;  for  his  suit  is  not  then  based  upon  an  agreement  in  writing: 
Bubier  v.  Bubier,  24  Me.  42,  47. 

§  326,  3  Stearns  v.  Hubbard,  8  Me.  320 ;  Wilton  v.  Harwood,  23  Me. 
131,  133;  Marston  v.  Humphrey,  24  Me.  513,  517;  Hunt  v.  Roberts,  40 
Me.  187;  Patterson  v.  Yeaton,  47  Me.  308,  315.  But  in  Chamberlain  v. 
Black,  64  Me.  40,  the  court  decreed  the  complete  specific  performance 
of  an  agreement  partly  oral  and  partly  written. 

§  327,  1  Dwinal  v.  Smith,  25  Me.  379 ;  Given  v.  Simpson,  5  Me.  303, 
309;  Traip  v.  Gould,  15  Me.  82;  Gardiner  v.  Gerrish,  23  Me.  46;  Sargent 
V.  Salmond,  27  Me.  539,  547;  Caswell  v.  Caswell,  28  Me.  232,  236;  Foss 
V.  Haynes,  31  Me.  81,  89;  Hartshorn  v.  Eames,  31  Me.  93,  96;  Fletcher 
V.  Holmes,  40  Me.  364;  Stover  v.  Poole,  67  Me.  217;  Webster  v.  Clark, 
25  Me.  313,  315 ;  Woodman  v.  Freeman,  25  Me.  531,  540. 

§  327,  2  Jurisdiction  refused  where  the  only  relief  was  damages : 
Woodman  v.  Freeman,  25  Me.  531,  540;  Piscataqua,  etc.,  Co.  v.  Hill,  60 
Me.  178 ;  Denny  v.  Gilman,  26  Me.  149,  153.  The  general  jurisdiction  in 
cases  of  fraud  did  not  enlarge  the  equity  powers  of  the  court  over  mort- 
gages: French  v.  Sturdivant,  8  Me.  246,  251;  nor  its  powers  to  compel 
the  specific  performance  of  verbal  contracts  for  the  sale  of  land:  Wilton 


§  32^  EQUITY   JUEISPEUDENCE.  620 

judgment  creditors  against  the  fraudulent  transfers  by 
debtors  of  their  property,  either  real  or  personal.^  By 
virtue  of  other  sections  of  the  statute,  the  court  has  power 
to  give  equitable  relief  to  the  parties  interested  in  a  levy 
made  under  an  execution  upon  land  of  the  judgment 
debtor  ;2  and  also  to  redeem  lands  thus  levied  upon. 3 

§  329.  Trusts.— The  chapter  of  the  Revised  Statutes  con- 
tains two  distinct  sections  relating  to  trusts, — one  of  them 
in  general  terms  giving  jurisdiction  ''in  all  cases  of  trust," 
the  other  conferring  power  to  construe  wills  and  to  ad- 
minister testamentary  trusts.  "With  reference  to  the  first 
and  more  general  grant,  it  was  held  in  an  early  case, 
that,  under  a  former  provision  of  the  statute,  the  jurisdic- 
tion was  confined  to  express  trusts.^  This  construction, 
however,  no  longer  prevails.  By  the  broad  terms  of  the 
present  statute  the  jurisdiction  embraces  all  express  trusts, ^ 
all  trusts  arising  by  operation  of  law,  and  recognized  by 
the  doctrines  of  equity  jurisprudence,  whether  resulting, 

V.  Harwood,  23  Me.  131,  133;  nor  in  cases  of  attachment:  Skeele  v.  Stan- 
wood,  33  Me.  307.a 

§  328,  1  Gordon  v.  Lowell,  21  Me.  251;  Webster  v.  Clark,  25  Me.  313; 
Traip  v.  Gould,  15  Me.  82;  Sargent  v.  Salmond,  27  Me.  539,  547;  Cas- 
well V.  Caswell,  28  Me.  232,  236;  Hartshorn  v.  Eames,  31  Me.  93,  96; 
Webster  v.  Clark,  25  Me.  313,  315. 

§  328,  2  Maine  Rev.  Stats.,  chap.  76,  §§  14,  20,  pp.  572,  573;  Warren 
V.  Ireland,  29  Me.  62;  Garnsey  v.  Garnsey,  49  Me.  167;  Thayer  v.  Maj'^o, 
34  Me.  142;  Glidden  v.  Chase,  35  Me.  90,  56  Am.  Dec.  690;  Keen  v. 
Briggs,  46  Me.  469;  Day  v.  Swift,  48  Me.  369;  Wilson  v.  Gannon,  54 
Me.  384. 

§  328,  3  Maine  Rev.  Stats.,  chap.  76,  §  25 ;  Boothby  v.  Commercial 
Bank,  30  Me.  361,  363. 

§  329,  1  Given  v.  Simpson,  5  Me.  303. 

§  329,  2  Morton  v.  Southgate,  28  Me.  41 ;  Pratt  v.  Thornton,  28  Me. 
355,  366,  48  Am.  Dec.  492;  Tappan  v.  Deblois,  45  Me.  122,  131;  Cowan 
V.  Wheeler,  25  Me.  267,  43  Am.  Dec.  283. 

§327,  (a)  The  present  jurisdiction  See  Taylor  v.  Taylor,  74  Me.  582; 
in  matters  of  fraud  is  much  broader.       Merrill  v.  McLaughlin,  75  Me.  64. 


621  JUDICIAL    INTERPRETATION    OF    JURISDICTION.  §  330 

implied,  or  constructive,^  and  charitable  trusts.'*  By  the 
other  clause  there  is  a  complete  jurisdiction  for  the  con- 
struction of  wills  which  create  any  trust  relation,  and  for 
the  execution  of  testamentary  trusts,  supervision  of  trus- 
tees, regulating  the  disposition  and  investment  of  trust 
property,  and  the  like.^ 

§  330.  Mistake  and  Accident — Reformation. — The  juris- 
diction ordinarily  possessed  by  courts  of  equity  growing  out 
of  mistake  or  accident,  and  to  grant  the  remedy  of  reforma- 
tion according  to  the  settled  rules  of  equity  jurisprudence, 
seems  to  have  been  fully  conferred  by  the  statute,  and  to 
have  been  freely  exercised  without  any  special  limitations. i 

§  329,  3  Linscott  v.  Buck,  33  Me.  530,  534 ;  Roxbury  v.  Huston,  37  Me. 
42;  Richardson  v.  Woodbury,  43  Me.  206;  Tappan  v.  Deblois,  45  Me. 
122,  131 ;  McLarren  v.  Brewer,  51  Me.  402 ;  Crooks  v.  Rogers,  58  Me.  339, 
342;  Russ  v.  Wilson,  22  Me.  207,  210. 

§  329,  4  Tappan  v.  Deblois,  45  Me.  122,  131 ;  Preachers'  Aid  Soc.  v. 
Rich,  45  Me.  552,  559;  Howard  v.  Am.  Peace  Soc,  49  Me.  288,  306; 
Nason  v.  First  Church,  etc.,  66  Me.  100. 

§  329,  5  Construction  of  wills :  Morton  v.  BaiTett,  22  Me.  257,  39  Am. 
Dec.  575;  Wood  v.  White,  32  Me.  340,  52  Am.  Dec.  654  (correction  of  a 
mistake  in  the  christian  name  of  a  legatee) ;  Howard  v.  Am.  Peace  Soc, 
49  Mc  288,  306;  Baldwin  v.  Bean,  59  Me.  481;  Richardson  v.  Knight, 
69  Me.  285,  289;  Jones  v.  Bacon,  68  Me.  34,  28  Am.  Rep.  1;  Slade  v. 
Patten,  68  Me.  380;  Everett  v.  Carr,  59  Me.  325.  Executing  testa- 
mentary trusts:  Morton  v.  Southgate,  28  Me.  41;  Bugbee  v.  Sargent,  23 
Me.  269;  Bugbee  v.  Sargent,  27  Me.  338;  Tappan  v.  Deblois,  45  Me.  122, 
131;  Preachers'  Aid  Soc  v.  Rich,  45  Me.  553,  559;  Howard  v.  Am. 
Peace  Soc,  49  Me.  288,  306;  Elder  v.  Elder,  50  Me.  535;  Richardson  v. 
Knight,  09  Me.  285,  289 ;  Nason  v.  First  Church,  etc.,  66  Me.  100. 

§  330,  1  In  most  of  these  cases  a  reformation  was  granted :  Wood  v. 
White,  32  Me.  340,  52  Am.  Dec.  654  (mistake  in  name  of  a  legatee  in  a 
will  corrected);  Farley  v.  Bryant,  32  Me.  474;  Tucker  v.  Madden,  44 
Me.  206,  216;  Adams  v.  Stevens,  49  Me.  362,  366;  Stover  v.  Poole,  67 
Me.  218;  Jordan  v.  Stevens,  51  Me.  78,  81  Am.  Dec.  556.  In  this  case 
the  court  held  that  the  jurisdiction  given  by  statute  was  not  confined 
to  mistakes  of  fact,  and  that  a  court  of  equity  has  power,  under  some 
circumstances,  to  relieve  from  a  mistake  of  law.* 

§  330,  (a)  To  the  same  effect,  Tarbox  v.  Tarbox,  111  Me.  374,  89  Atl.  194. 


§§331,332  EQUITY    JURISPRUDENCE.  61^2 

§  331.  Nuisance  and  Waste. — Under  tlie  statutory  pro- 
vision concerning  these  subjects,  the  court  has  held  that  its 
jurisdiction  extends  to  all  cases  of  proper  waste  or  nuisance, 
according  to  well-settled  doctrines  of  equity  jurisprudence, 
where  the  remedy  at  law  is  inadequate,  and  where  the  plain- 
tiff's title  is  clear,  or  if  disputed  has  been  established  by  a 
recovery  at  law,  and  enables  it  to  grant  the  relief  of  abate- 
ment and  of  injunction;  but  there  is  no  jurisdiction  in 
cases  where  the  only  relief  is  a  recovery  of  damages.^ 

§  332.     Partnership,  Part  Owners,  and  Accounting. — The 

statutes  do  not  in  terms  give  the  jurisdiction  ordinarily 
possessed  by  courts  of  equity  over  all  matters  of  account- 
ing; the  only  express  grant  of  power  is  that  contained  in 
this  subdivision  of  the  statute  relating  to  partners  and 
other  part  owners.  The  supreme  court  seems  to  have  given 
a  restricted  construction  to  the  clause,  and  to  have  con- 
fined the  equitable  jurisdiction  under  it  to  cases  between 
true  legal  partners,  or  between  joint  owners  or  co-owners 
of  real  or  personal  property,  for  the  purpose  of  determin- 
ing, by  means  of  an  accounting,  their  respective  shares,  and 
adjusting  their  mutual  claims.^ 

§  331,  1  Cases  of  nuisance :  Porter  v.  Witham,  17  Me.  292 ;  Andros- 
coggin, etc.,  R.  R.  V.  Androscoggin  R.  R.,  49  Me.  392,  403;  Varney  v. 
Pope,  60  Me.  192.  Cases  of  waste :  The  jurisdiction  is  confined  to  cases 
of  technical  waste,  and  the  statute  cannot  be  extended  by  implication 
to  embrace  cases  of  trespasses:  Leighton  v.  Leighton,  32  Me.  399,  402. 

§  332,  1  Cases  of  partnership :  Reed  v.  Johnson,  24  Me.  322,  325 ; 
Woodward  v.  Cowing,  41  Me.  9,  12,  66  Am.  Dec.  211;  Holyoke  v.  Mayo, 
50  Me.  385;  Pray  v.  Mitchell,  60  Me.  430.  Cases  of  part  owners: 
Maguire  v.  Pingree,  30  Me.  508 ;  Ripley  v.  Crooker,  47  Me.  370,  378,  74 
Am.  Dec.  491;  Mustard  v.  Robinson,  52  Me.  54;  Carter  v.  Bailey,  64  Me. 
458,  465,  18  Am.  Rep.  273;  Somes  v.  White,  65  Me.  542,  20  Am.  Rep. 
718.  With  respect  to  accounting  in  general,  see  McKim  v.  Odom,  12  Me. 
94;  Carter  v.  Bailey,  64  Me.  458,  465,  18  Am.  Rep.  273.^ 

§  332,  (a)  A  bill  for  an  accounting  shares,  is  not  maintainable,  since  the 
by  the  owners  of  a  vessel  against  remedy  at  law  is  ample.  Bird  v. 
the   master,   who   had   taken   her   on       Hall,  73  Me.  73. 


623      JUDICIAL    INTERPRETATION    OF    JURISDICTION.      §§333,334 

§  333.  Injunction. — While  tlie  statute  authorizes  injunc- 
tions ''in  cases  of  equity  jurisdiction,"  this  language, 
it  was  held,  referred  only  to  the  limited  jurisdiction  con- 
ferred upon  the  courts  of  Maine,  and  did  not  permit  an 
injunction  under  all  the  circumstances  in  which  it  may  be 
used  by  a  tribunal  clothed  with  full  equitable  powers.  The 
supreme  court  has  therefore  dealt  with  injunctions  in  a 
very  cautious  and  guarded  manner.^ 

§  334.  Taxation  by  Municipal  Corporation. — A  modern 
statute  gives  a  special  jurisdiction,  which  perhaps  does  not 
exist  independently  of  statutory  authority,  to  interfere  at 
the  suit  of  taxable  inhabitants,  and  prevent  counties,  cities, 
towns,  and  school  districts  from  pledging  their  credit,  lay- 
ing taxes,  or  paying  out  public  money  for  any  purpose  not 
authorized  by  law.  The  nature,  extent,  and  limits  of  this 
judicial  power  are  discussed  and  determined  in  the  cases 
collected  in  the  foot-note.^ 

§  333,  1  The  injunction  has  been  allowed  to  restrain  an  action  or  judg- 
ment at  law  on  the  ground  of  fraud,  or  mistake,  or  purely  equitable  de- 
fense, but  with  great  caution :  Chalmers  v.  Hack,  19  Me.  124,  127 ;  Cowan 
V.  Wheeler,  25  Me.  267,  282,  43  Am.  Dec.  283 ;  Titcomb  v.  Potter,  11  Me. 
218;  Russ  v.  Wilson,  22  Me.  207;  Devoll  v.  Scales,  49  Me.  320;  Marco  v. 
Low,  55  Me.  549;  to  restrain  waste  or  nuisance;  Porter  v.  Witham,  17 
Me.  292;  Androscoggin,  etc.,  R.  R.  v.  Androscoggin  R.  R.,  49  Me.  392, 
403 ;  Vamey  v.  Pope,  60  Me.  192 ;  Leighton  v.  Leighton,  32  Me.  399,  402 ; 
and  in  extreme  cases  to  restrain  trespasses:  Leighton  v.  Leighton,  32 
Me.  399,  402 ;  Spofford  v.  Bangor,  etc.,  R.  R.,  66  Me.  51.  For  cases  con- 
cerning injunctions  in  general,  see  Russ  v.  Wilson,  22  Me.  207;  Smith 
V.  Ellis,  29  Me.  422,  425;  York,  etc.,  R.  R.  v.  Myers,  41  Me.  109;  Morse 
V.  Machias,  etc.,  Co.,  42  Me.  119,  127 ;  Lewiston  Falls  Mfg.  Co.  v.  Frank- 
lin Co.,  54  Me.  402. 

§  334,  1  Clark  v.  Wardwell,  55  Me.  61 ;  Johnson  v.  Thorndike,  56  Me. 
32,  37 ;  Allen  v.  Inhabitants  of  Jay,  60  Me.  124,  11  Am.  Rep.  185 ;  Marble 
V.  McKenney,  60  Me.  332.  There  is  no  power  whatever  in  a  court  of 
equity  to  review  the  proceedings  of  county,  town,  or  city  officials  in  the 
matter  of  laying  out  or  establishing  ro'ads  or  streets :  Baldwin  v.  Bangor, 
36  Me.  518,  524. 


§§  335-337  EQUITY    JURISPRUDENCE.  624 

§  335.  Discovery. — Discovery  as  an  independent  source 
of  jurisdiction  is  distinctly  repudiated.  No  suit  could 
therefore  be  maintained  for  discovery  and  relief  unless 
there  was  otherwise  a  jurisdiction  to  entertain  the  suit  for 
the  relief  alone.  Nor,  as  it  seems,  was  a  bill  of  discovery, 
properly  so  called,  without  relief  in  aid  of  an  action  or 
defense  at  law  authorized  by  the  statutory  language.  The 
only  discovery  permitted  was  in  aid  of  a  relief  which  could 
be  obtained  under  some  of  the  specified  heads  of  jurisdiction 
conferred  by  the  statute.^ 

§  336.  Damages. — The  power  to  award  damages  in  a 
proper  case,  as  a  necessary  incident  to  other  purely  equi- 
table relief  and  in  the  same  decree,  is  fully  admitted,  and 
even  to  award  damages  alone  in  very  special  cases;  but 
the  jurisdiction  has  been  exercised  with  the  utmost  caution 
and  reserve.^ 

§337.  Other  Special  Subjects. — In  addition  to  the  fore- 
going general  grants  of  jurisdiction,  the  statutes  of  Maine 
contain  numerous  other  provisions  authorizing  an  equitable 
suit  and  equitable  relief  under  the  special  circumstances 
and  for  the  special  purposes  therein  described. ^  The  most 
important  of  these  clauses  which  have  received  any  judicial 
construction  are  those  relating  to  banks  and  other  corpora- 

§  335,  1  Coombs  v.  Warren,  17  Me.  404,  408 ;  Woodman  v.  Freeman, 

25  Me.  531,  543  (no  discovery  without  relief  in  aid  of  an  action  or  de- 
fense at  law) ;  Russ  v.  Wilson,  22  Me.  207,  210;  Warren  v.  Baker,  43  Mc. 
570,  574  (no  jurisdiction  for  a  bill  of  discovery  alone  in  aid  of  an  action 
at  law) ;  Dinsmore  v.  Grossman,  53  Me.  441;  Foss  v.  Haynes,  31  Me.  81. 

§  336,  1  Woodman  v.  Freeman,  25  Me.  531,  532,  543.  The  opinion  in 
this  case  contains  a  most  able,  full,  and  instinictive  discussion  of  the 
whole  subject  of  damages  in  equity.  See,  also,  Piscataqua,  etc.,  Co.  v. 
Hill,  60  Me.  178;  Haskell  v.  Allen,  23  Me.  448,  451;  Denny  v.  Gilman, 

26  Me.  149,  153.  The  supreme  court  has  constantly  felt  itself  restricted 
and  cramped  as  a  court  of  equity  fey  a  provision  in  the  state  constitution 
preserving  a  right  to  trial  by  jury. 

§  337,  1  Ante,  §  286,  note. 


625  JUDICIAL    INTERPEETATION    OF    JURISDICTION.  §  338 

tions,2  and  to  the  affairs  of  railroad  companies. ^  Cases 
illustrating  one  or  two  other  matters  incidentally  relating 
to  the  equitable  jurisdiction  may  be  found  in  the  foot- 
note.^  It  is  plain  from  the  foregoing  summary  that  the 
decisions  made  by  the  supreme  court  of  Maine  are  not  safe 
guides  in  ascertaining  the  nature,  extent,  and  limits  of  the 
powers  possessed  by  tribunals  having  a  full  equitable  juris- 
diction, like  the  English  court  of  chancery,  or  the  courts  in 
many  of  our  states.  At  the  same  time  many  of  its  opinions 
dealing  with  doctrines  of  equity  jurisprudence  which  belong 
to  branches  of  the  jurisdiction  conferred  upon  it  are  exceed- 
ingly valuable  and  instructive,  both  for  the  learning  and 
the  ability  of  their  discussions. 

§  338.  Pennsylvania.  —  The  equitable  jurisdiction  in 
Pennsylvania,  until  the  recent  legislation  quoted  in  the  last 
section,  has  been  so  peculiar,  so  unlike  that  prevailing  in 
any  other  state,  that  I  shall  only  attempt  to  describe  it  in  a 
very  general  manner.  A  full  and  detailed  account,  with 
all  the  modes  of  operating  the  system,  can  only  be  given  by 
means  of  an  extended  examination  of  numerous  decided 
cases,  and  many  quotations  from  judicial  opinions.  I  must 
leave  the  reader  to  make  his  own  examination  of  the  cases 
cited  in  the  foot-notes,  the  perusal  of  which  will  give  him 
a  clear  notion  of  the  system  in  all  its  theory  and  practical 
working. 

§337,  2  Me.  Rev.  Stats.,  chap.  47,  §§46,  47,  57,  74,  99;  Hewitt  v. 
Adams,  50  Me.  271,  277;  Bank  of  Mut.  Redemption  v.  Hill,  56  Me.  385, 
388,  96  Am.  Dec.  470 ;  Wiswell  v.  Starr,  48  Me.  401 ;  American  Bank  v. 
Wall,  56  Me.  167;  Dane  v.  Young-,  61  Me.  160;  Baker  v.  Atkins,  62  Me. 
205 ;  Jones  v.  Winthrop,  66  Me.  242. 

§  337,  3  Me.  Rev.  Stats.,  cliap.  51,  §§  10,  53;  Illsley  v.  Portland,  etc., 
R.  R.  Co.,  56  Me.  531,  537;  In  re  Bondliolders  of  York,  etc.,  R.  R.,  50  Me. 
552,  564 ;  Kennebec,  etc.,  R.  R.  v.  Portland,  etc.,  R.  R.,  54  Me.  173. 

§  337,  4  The  statute  of  limitations  and  lapse  of  time ;  their  effects 
upon  the  exercise  of  the  jurisdiction:  Chapman  v.  Butler,  22  Me.  191; 
Lawrence  v.  Rokes,  61  Me.  38,  42.     Equitable  set-off:  Smith  v.  Ellis,  29 
Me.  422,  426. 
1—40 


§§339,340  EQUITY    J UEISPRUDENCE.  626 

§  339.  Equitable  Powers  of  the  Common-law  Courts. — 
The  courts  of  original  general  jurisdiction  have  been 
strictly  common-law  tribunals,  and  the  common-law  forms 
of  action  have  continued  in  use  until  the  present  day.  The 
equitable  jurisdiction  prevailing  until  recently  may  be  de- 
scribed, in  one  sentence,  to  consist  of  the  adoption  by  the 
courts  of  the  doctrines  of  equity,  and  the  application  of  such 
doctrines,  in  combination  with  rules  of  the  common  law,  in 
the  trial  and  decision  of  legal  actions,  and  the  granting  of 
equitable  reliefs  so  far  as  was  possible  by  means  of  enlar- 
ging the  scope  and  molding  the  operation  of  the  various  com- 
mon-law forms  of  action.  The  resulting  jurisprudence  of 
the  state  was  therefore  one  uniform  system  containing  an 
admixture  of  legal  and  equitable  doctrines  and  rules,  legal 
and  equitable  rights  and  duties,  legal  remedies,  and  to  a 
limited  extent  equitable  remedies.  There  was,  however,  no 
power  in  the  courts  to  entertain  a  distinctively  equitable 
suit,  and  to  render  a  decree  giving  purely  equitable  relief ; 
the  only  equitable  reliefs  possible  were  those  obtainable, 
sometimes  directly,  but  more  often  indirectly,  through  the 
verdict  of  a  jury  and  the  judgment  of  the  court  thereon  in 
some  common-law  action, — as,  for  example,  an  action  of 
ejectment,  or  of  covenant. 

§  340.  For  a  long  time  the  legislature  refused  not  only 
to  create  any  separate  court  of  chancery,  but  even  to  confer 
any  distinctively  equitable  powers,  with  one  or  two  trivial 
exceptions,  upon  the  courts  of  law.  The  judges  were  there- 
fore compelled,  in  order  to  prevent  a  failure  of  justice,  to 
invent  some  mode  of  administering  equity.  This  was  ac- 
complished by  the  adoption  of  the  principles,  doctrines,  and 
rules  of  equity  jurisprudence  as  a  part  of  the  law  of  the 
state.  The  decision  of  common-law  actions  was  made  to 
depend,  not  upon  the  strict  rules  of  the  common  law  alone, 
but,  as  well,  upon  the  rules  of  equity;  and  of  course  the 
scope,  object,  and  effect  of  these  actions  were  greatly  modi- 
fied.    Purely  equitable  demands  were   enforced  by  legal 


627  JUDICIAL   INTERPRETATION    OF    JURISDICTION.  §  340 

actions  and  judgments ;  purely  equitable  defens.es  were  per- 
mitted in  sucli  actions;  purely  equitable  reliefs  were,  to  a 
considerable  extent,  obtained  by  means  of  actions  at  law. 
All  this  was  accomplished  by  the  intervention  of  the  judges, 
by  the  control  which  they  exercised  over  the  action  of  juries, 
and  by  their  molding  the  judgment  entered  upon  a  verdict 
so  as  to  render  it  special  and  adapted  to  the  circumstances 
of  the  particular  case,  and  the  equitable  rights  of  the  liti- 
gant parties.  By  these  most  admirable  contrivances  the 
evil  effects  of  ignorance  and  prejudice  in  the  legislature 
were  in  a  great  measure  obviated,  and  the  courts  were  able 
to  exercise,  in  effect,  a  wide  equitable  jurisdiction,  and  to 
incorporate  all  the  principles  and  important  doctrines  of 
equity  jurisprudence  into  the  municipal  law  of  Pennsyl- 
vania. I  have  collected  in  the  foot-note  a  number  of  cases 
to  illustrate  the  foregoing  conclusions,  and  to  explain  the 
system,  not  only  in  its  general  theory,  but  in  all  the  detail 
of  its  practical  operations. ^  * 

§  340,  1  Pollard  v.  Shaffer,  1  Dall.  210,  211,  1  Am.  Dec.  239 ;  Wikoff 
V.  Coxe,  1  Yeates,  353,  358;  Hollingsworth  v.  Fry,  4  Dall.  345,  348; 
Wharton  v.  Morris,  1  Dall.  124,  125;  Dorrow  v.  Kelly,  1  Dall.  142,  144; 
Stansbury  v.  Marks,  4  Dall.  130 ;  Ebert  v.  Wood,  1  Binn.  217,  2  Am.  Dec. 
436 ;  Murray  v.  Williamson,  3  Binn.  135 ;  Jordan  v.  Cooper,  3  Serg.  &  R. 
564,  578,  579,  589 ;  Funk  v.  Voneida,  11  Serg.  &  R.  109,  115 ;  Hawthorn  v. 
Bronson,  16  Serg.  &  R.  269,  278;  Lehr  v.  Beaver,  8  Watts  &  S.  106; 
Kuhn  V.  Nixon,  15  Serg.  &  R.  118,  125;  Cope  v.  Smith's  Ex'rs,  8  Serg. 
&  R.  110,  115;  Bixler  v.  Kunkle,  17  Serg.  &  R.  298,  303;  Martzell  v. 
Stauffer,  3  Penr.  &  W.  398,  401;  Patterson  v.  Schoyer,  10  Watts,  333; 
Seitzinger  v.  Ridgway,  9  Watts,  496,  498;  Cassell  v.  Jones,  6  Watts  &  S. 
452 ;  Torr's  Estate,  2  Rawle,  552. 

§340,  (a)  See,  also,  Kussell  v.  513;  Wheeling,  etc.,  B.  E.  Co.  v. 
Baughman,  94  Pa.  St.  400;  Eennyson  Gourley,  99  Pa.  St.  171;  Edwards  v. 
V.  Rozell,  106  Pa.  St.  412;  Appeal  of       Morgan,   100  Pa.  St.  330;   Elbert  v. 


Fidelity,  etc.,  Deposit  Co.,  99  Pa.  St 
443;  Hall's  Appeal,  112  Pa.  St.  54 
Eowand  v.  Finney,  96  Pa.  St.  192 
Kensinger  v.  Smith,  94  Pa.  St.  384 
Winpenny  v.  Winpenny,  92  Pa.  St 
440;   Connolly  v.  Miller,  95   Pa.   St 


O'Neil,  102  Pa.  St.  302;  Wills  v.  Van 
Dyke,  109  Pa.  St.  330;  Bell  v.  Clark, 
111  Pa.  St.  92;  Curry  v.  Curry,  114 
Pa.  St.  367;  Reno  v.  Moss,  120  Pa. 
St.  49;  Wylie  v.  Mausley,  132  Pa.  St. 
08;  Barclay's  Appeal,  93  Pa.  St.  50. 


§  341  EQUITY   JUEISPKUDENCB.  628 

§  341.  Separate  Equity  Jurisdiction  Given  by  Statutes. 
A  change  at  length  took  place  in  the  legislative  policy. 
The  statutes  cited  in  the  preceding  section  show  that,  as 
the  first  step,  a  few  specified  and  distinctively  equitable 
powers  were  conferred  upon  a  certain  court  of  limited 
territorial  jurisdiction.  The  court,  thus  clothed  with  this 
new  authority,  was  thereby  enabled  to  entertain  equitable^ 
suits  and  to  administer  equitable  reliefs,  according  to  the 
course  and  proceeding  in  chancery.  The  same  powers 
were  subsequently  given  to  other  tribunals.  In  the  prog- 
ress of  time,  and  by  successive  enactments,  the  equitable 
powers  themselves  were  gradually  enlarged  and  multiplied, 
until  by  the  latest  statute  of  the  series,  passed  at  quite  a  re- 
cent date,  a  full  equitable  jurisdiction  is  granted  to  all  the 
courts  of  original  general  jurisdiction  throughout  the  state. 
It  is  settled  with  absolute  unanimity  of  decision  that  these 
statutory  grants  of  a  distinctive  chancery  jurisdiction,  and 
the  equity  functions  conferred  thereby,  do  not  in  the  least 
abridge,  interfere  with,  or  affect  the  powers  always  hereto- 
fore held  by  the  courts  of  applying  equitable  doctrines  and 
administering  equitable  reliefs  through  the  means  of  legal 
actions  and  as  a  part  of  the  law;  this  peculiar  province  of 
the  courts  still  remains  unchanged  by  the  modem  legisla- 
tion. The  total  result  seems  to  be  that  the  courts  of  Penn- 
sylvania in  reality' possess  two  equitable  jurisdictions, — 
the  one  arising  from  their  own  judicial  action,  and  exercised 
in  combination  with  the  law,  according  to  the  methods  and 
procedure  of  common-law  actions ;  the  other  expressly  con- 
ferred by  the  statutes,  and  exercised  by  means  of  proper 
suits  in  equity,  according  to  the  methods  and  procedure  of 
the  court  of  chancery.^     I  will  merely  remark,  in  conclusion, 

§  341,  1  See  ante,  §  286,  note.  With  reference  to  the  amount  and  ex- 
tent of  the  distinctively  chancery  jurisdiction  given  by  the  legislature, 
the  earlier  statutes  of  the  series  were  strictly  interpreted.  The  courts 
invariably  refused  to  exercise  any  powers  under  them  except  those  which 
were  expressly  conferred;  enlarging  their  jurisdiction  by  implication  was 
steadily  resisted.    Under  the  later  and  more  comprehensive  enactments, 


629  JUDICIAL   INTERPRETATION    OF    JURISDICTION.  §  342 

that  while  the  decisions  of  the  Pennsylvania  courts  may  be 
referred  to  as  authorities  upon  the  principles,  doctrines, 
and  rules  of  equity  jurisprudence, — and  many  of  them  are 
exceedingly  valuable  from  their  breadth  of  view, — they  are, 
from  the  necessities  of  their  peculiar  conditions,  of  com- 
paratively little  value  upon  questions  of  the  equitable  juris- 
diction. This  may  at  least  be  regarded  as  true  of  the  de- 
cisions made  prior  to  the  latest  statutes  conferring  a 
general  jurisdiction  in  chancery. 

§  342.  The  Other  States— What  States  Included  in  This 
Division. — In  describing  the  extent  of  the  equitable  juris- 
diction as  established  by  judicial  decision  in  the  remaining 
states,  I  may,  for  all  the  purposes  of  the  present  inquiry, 

a  full  equitable  jurisdiction  is  asserted,  subject  to  the  limitation  inherent 
in  the  very  conception  of  equity  jurisdiction,  that  an  adequate  remedy 
cannot  be  obtained  at  law.  This  limitation,  however,  is  liberally  dealt 
with,  and  is  not  treated  as  having  received  any  larger  or  more  imperative 
or  restrictive  force  from  the  statute.  I  collect  the  cases  into  two  gi'oups : 
1.  Those  which  hold  that  the  ancient  and  peculiar  equitable  functions 
of  the  court  and  the  system  of  applying  equitable  doctrines  in  adminis- 
tering the  law  remain  unaffected;  and  2.  Those  which  deal  with  the  ex- 
tent of  chancery  jurisdiction  granted  by  the  statutes.  The  latter  group 
are  arranged  chronologically. 

1.  Cases  relating  to  the  general  effect  of  the  statutes  upon  the  former 
equity  system:  Church  v.  Ruland,  64  Pa.  St.  432,  441;  Hauberger  v.  Root, 
5  Pa.  St.  108,  112;  Robinson  v.  Buck,  71  Pa.  St.  386,  391;  Biddle  v. 
Moore,  3  Pa.  St.  161,  176;  Aycinena  v.  Peries,  6  Watts  &  S.  243,  257; 
Wesley  Church  v.  Moore,  10  Pa.  St.  273 ;  Painter  v.  Harding,  3  Phila.  59. 

2.  Cases  relating  to  the  extent  and  amount  of  equity  jurisdiction :  Gil- 
der v.  Merwin,  6  Whart.  522,  540-543 ;  Dalzell  v.  Crawford,  1  Pars.  Cas. 
37,  41 ;  Comm.  v.  Bank  of  Pa.,  3  Watts  &  S.  184,  193 ;  liagner  v.  Hey- 
terger,  7  Watts  &  S.  104,  106;  Bank  of  U.  S.  v.  Biddle,  2  Pars.  Cas.  31 
Bank  of  Ky.  v.  Schuylkill  Bank,  1  Pars.  Cas.  181,  219;  Kirkpatrick  v 
McDonald,  11  Pa.  St.  387,  392;  Skilton  v.  Webster,  Bright.  N.  P.  203 
Strasburgh  R.  R.  Co.  v.  Ecliternaeht,  21  Pa.  St.  220,  60  Am.  Dec.  49 
Mulvany  v.  Kennedy,  26  Pa.  St.  44;  Patterson  v.  Lane,  35  Pa.  St.  275 
Gallagher  v.  Fayette  Co.  R.  R.,  38  Pa.  St.  102 ;  Hottenstein  v.  Clement,  3 
Orant  Cas.  316 ;  Gloninger  v.  Hazard,  42  Pa.  St.  389,  401 ;  Weir  v.  Mun- 
<lel),  3  Brewst.  594;  Dohnert's  Appeal,  64  Pa.  St.  311,  313;  Wheeler  v. 
Philadelphia,  77  Pa.  St.  338,  344. 


§  342  EQUITY   JURISPRUDENCE.  630 

unite  into  one  group  and  consider  togetlior  all  tliose  which 
constitute  the  first,  second,  and  fourth  classes  of  the 
last  preceding  section.^  Since  in  each  of  these  classes  the 
legislation  purports  to  give  a  complete  jurisdiction  coin- 
cident with  the  entire  scope  of  the  equity  jurisprudence,  it 
will  neither  be  necessary  nor  proper  to  examine,  as  in  the 
case  of  Massachusetts  and  the  few  other  states  composing 
the  third  class,  the  particular  departments  or  subject- 
matters  of  equitable  cognizance  enumerated  by  the  statutes 
and  coming  within  the  judicial  functions  of  the  courts;  my 
object  will  be  accomplished  by  ascertaining  the  interpreta- 
tion which  has  been  put  upon  these  general  grants  of 
power  by  the  judiciary,  and  the  total  extent  of  jurisdiction 
which  has  been  derived  from  them  and  exercised  by  the 
tribunals  of  each  commonwealth.  It  will  be  remembered 
that  in  all  the  states  forming  the  first  class  an  equitable 
jurisdiction,  equivalent  in  extent  with  that  possessed  by  the 
English  court  of  chancery,  is  expressly  conferred  ;2  in 
those  forming  the  second  class,  the  same  amount  of  juris- 
diction is  implied  from  the  statutory  language;^  while  in 
those  of  the  fourth  class,  the  states  which  have  adopted  the 
reformed  American  system  of  procedure,  and  have  there- 
fore abolished  all  distinction  between  actions  at  law  and 
suits  in  equity,  a  full  authority  is  granted  to  determine  all 
"civil  actions,"  whatever  be  the  nature  of  the  primary 
right  involved  or  of  the  remedy  demanded.*  In  a  few  of 
these  states  the  statutes  conferring  the  equitable  juris- 
diction contain  the  clause,  substantially  the  same  with  the 
sixteenth  section  of  the  United  States  Judiciary  Act,  ex- 
pressly limiting  the  existence  or  exercise  of  the  jurisdiction 
to  those  cases  in  which  the  remedy  at  law  is  inadequate.^ 

§342,  1  See  ante,  §§  284,  285,  287,  and  notes  thereunder. 
§  342,  2  See  ante,  §  284,  and  note. 
§  342,  3  See  ante,  §  285,  and  note. 
§  342,  4  See  ante,  §  287,  and  note. 

§  342,  5  The  language  of  this  clause  varies  slightly  in  different  stat- 
utes, but  its  meaning  is  absolutely  the  same  in  all.     The  states  in  which 


631  JUDICIAL   INTERPEETATION    OF    JURISDICTION.  §  343 

In  by  far  the  greater  number  of  the  states,  the  statutes 
simply  grant  the  equitable  jurisdiction  in  general  terms, 
without  adding  any  such  express  limitation  upon  its  exist- 
ence, extent,  or  exercise.^ 

§  343.  Questions  Stated. — ^Having  thus  recapitulated  the 
legislation  of  these  states,  I  shall  proceed,  in  the  first  place, 
to  examine  the  interpretation  given  to  it  by  the  courts;  to 
inquire  how  far  it  has  been  accepted  and  acted  upon  to  the 
full  extent  of  the  comprehensive  language  used  by  the 
legislatures,  and  what  special  effect,  if  any,  has  been  at- 
tributed to  the  restrictive  clause  above  mentioned  found 
in  some  of  the  statutes;  and  thus  to  ascertain  whether 
a  complete  system  of  equitable  jurisdiction,  practically 
commensurate  with  that  held  by  the  English  court  of 
chancery,  has  in  fact  been  developed  by  the  judiciary  upon 
the  basis  of  these  general  statutory  grants.  I  shall  then 
endeavor  to  ascertain,  in  the  second  place,  whether,  not- 
withstanding the  adoption  of  such  a  system  of  jurisdiction 
purporting  to  be  complete,  any  important  departments  or 
subjects  originally  belonging  to  the  equity  jurisprudence 
have  been  withdrawn  by  the  operation  of  other  statutes 
from  the  cognizance  of  the  equity  courts,  or  courts  possess- 
ing equity  powers,  and  placed  perhaps  under  the  control  of 
separate  special  tribunals,  so  that  these  departments  or  sub- 
jects no  longer  form  a  part  of  the  distinctive  equitable  juris- 
diction and  jurisprudence.  I  shall  thus  be  able  to  present, 
in  outline  at  least,  the  extent  and  scope  of  the  equitable 

it  is  found  are  Alabama,  Arkansas,  Connecticut,  Delaware,  Oregon, 
South  Carolina,  and  in  the  earlier  legislation  of  Missouri,  but  the  later 
statutes  of  that  state  seem  to  have  omitted  it.  To  these  may  be  added, 
in  order  to  complete  the  list,  Maine,  Massachusetts,  and  New  Hamp- 
shire, which  belong  to  the  third  class  of  the  preceding  section. 

§  342,  6  In  California,  Florida,  Georgia,  Illinois,  Indiana,  Iowa,  Kan- 
sas, Kentucky,  Maryland,  Michigan,  Minnesota,  Mississippi,  Missouri 
(the  latest  statutes),  Nebraska,  Nevada,  New  Jersey,  New  York,  North 
Carolina,  Ohio,  Rhode  Island,  Tennessee,  Vermont,  Virginia,  West  Vir- 
ginia, Wisconsin. 


§  344  EQUITY   JURISPRUDENCE.  632 

jurisdiction  actually  existing  and  administered  by  the 
courts  in  all  the  states  composing  this  extensive  group. 
Any  more  detailed  examination  in  this  section  would  be 
not  only  unnecessary,  but  impracticable. 

§  344.  Special  Statutory  Limitation  —  Inadequacy  of 
Legal  Remedies. — In  most  of  the  states  where  the  legisla- 
tion contains  the  clause  expressly  declaring  that  the  equi- 
table jurisdiction  shall  not  extend  to  cases  for  which  the 
legal  remedy  is  adequate,  the  courts  have  followed  the  ex- 
ample set  by  the  national  judiciary,  and  have  firmly  estab- 
lished the  doctrine  that  this  clause  is  simply  declaratory  of 
a  principle  inherent  in  the  very  conception  of  equity  as  a 
department  of  the  municipal  law ;  that  it  produces  no  prac- 
tical effect  whatever  upon  the  extent  and  nature  of  the  gen- 
eral jurisdiction  otherwise  conferred,  but  leaves  that  juris- 
diction exactly  what  it  would  have  been  had  the  limiting 
language  never  been  incorporated  into  the  statute.  The 
clause,  therefore,  is  not  regarded  as  forming  any  new  and 
statutory  test  or  criterion  of  the  jurisdiction;  and  the  equi- 
table powers  of  the  courts  are  determined  by  the  other 
and  more  general  provisions  of  the  statutes  and  by  the 
universal  principles  of  equity  jurisprudence.  The  equi- 
table jurisdiction  in  these  states  is  held  to  be  a  complete 
and  comprehensive  system,  except  so  far  as  it  may  have 
been  abridged,  with  respect  to  particular  branches  or  sub- 
jects, by  the  restrictive  operation  of  other  statutes. i     In  a 

§  344,  1  The  decisions  by  the  courts  of  different  states  which  sustain 
the  foregoing  proposition  of  the  text  are  collected  in  this  note. 

Oregon.—TIowe  v.  Taylor,  6  Or.  284,  291,  292.  See,  also,  Wells,  Fargo 
&  Co.  V.  Wall,  1  Or.  295;  Hatcher  v.  Briggs,  6  Or.  31,  41. 

Alabama.— Waldron  v.  Simmons,  28  Ala.  629,  631-633.  The  court,  in 
commenting  upon  and  construing  section  602  of  the  Alabama  code  (quoted 
in  the  preceding  section,  in  note  under  section  285),  hold  that  the  sub- 
division 4  refers  to  the  time  when  the  code  itself  was  adopted,  and  the 
equitable  jurisdiction  is  to  be  tested  by  its  existence  at  that  time,  and  if  it 
then  existed  has  not  been  ousted  by  any  laws  subsequently  passed.  With 
respect  to  the  entire  section  602,  the  court  say  (p.  633)  :  "Our  conclusion 
is,  that  the  first  subdivision  of  section  602  is  but  the  adoption  of  an  exist- 


633  JUDICIAL    INTERPRETATION    OF    JURISDICTION.  §  344 

very  few  states,  however,  the  narrower  mode  of  interpreta- 
tion, similar  to  that  which  long  prevailed  in  Massachusetts, 
has  been  adopted.  The  clause  is  treated  as  creating  a  stat- 
utory, new,  and  effective  measure  of  the  equitable  jurisdic- 
tion, restricting  its  operation  and  preventing  its  exercise 
in  any  cases  for  which  there  is  an  adequate  remedy  at  law, 
even  though  such  cases  were  undoubtedly  embraced  within 

ing  rule;  that  the  second  and  third  subdivisions  are  modifications  by  way 
of  enlargement  of  the  system  of  chancery  jurisprudence  and  jurisdiction 
which  had  been  established  in  England  before  the  American  Revolution; 
and  that  the  fourth  subdivision  was  the  adoption  of  that  system  as  modi- 
fied by  the  second  and  third  subdivisions  and  by  other  sections  of  the 
code.  And  we  are  entirely  satisfied  that  as  to  cases  in  which,  originally, 
jurisdiction  had  vested  legitimately  in  courts  of  chancery,  the  jurisdiction 
is  not  abolished  by  anything  contained  in  section  602,  although  a  plain 
and  adequate  remedy  at  law  in  such  cases  is  provided  by  some  other  sec- 
tion of  the  code,  no  prohibitory  or  restrictive  words  being  used."  See, 
also,  to  the  same  general  effect,  Hall  v.  Canute,  22  Ala,  650;  Youngblood 
V.  Youngblood,  54  Ala.  486.  In  Lee  v.  Lee,  55  Ala.  590,  it  was  held  that 
the  court  of  chancery,  as  in  England,  is  the  general  guardian  of  all  infants 
within  its  territorial  jurisdiction,  and  has  an  original  inherent  jurisdiction 
to  appoint  guardians  for  them,  and  to  control  and  remove  their  guardians, 
no  matter  how  or  by  whom  appointed;  and  this  jurisdiction  is  not  affected 
by  the  statutory  jurisdiction  given  to  the  probate  courts. 

Arkansas. — Hempstead  v.  Watkins,  6  Ark.  317,  356,  357,  42  Am.  Dec. 
696,  holds  distinctly  that  the  clause  is  simply  declaratory,  and  creates  no 
new  rule. 

Missouri. — Clark  v.  Henry's  Adm'rs,  9  Mo.  336,  339,  holds  that  courts 
of  equity  having  original  jurisdiction  under  the  general  doctrines  of  equity 
have  not  lost  that  jurisdiction  because  an  adequate  remedy  has  been  pro- 
vided by  law.  The  extent  of  the  equitable  jurisdiction  is  not  founded  on 
or  measured  by  the  Missouri  statutes,  but  by  general  usage.  The  clause  in 
question  is  held  to  be  declaratory  merely :  "This  is  a  mere  general  definition 
of  the  nature  and  character  of  ehanceiy  courts  as  contradistinguished  from 
courts  of  law."  See,  also,  to  the  same  effect,  that  the  jurisdiction  extends 
to  all  matters  of  equitable  cognizance,  Cabanne  v.  Lisa,  1  Mo.  682;  Janney 
V.  Spedden,  38  Mo.  395;  Biddle  v.  Ramsey,  52  Mo.  153;  Meyers  v.  Field, 
37  Mo.  434,  441;  Mag-wii-e  v.  Tyler,  47  Mo.  115,  128.» 

§  344,  (a)  Cox  V.  Volkert,  86  Mo.       Atlantic  Milling  Co.,  98  Mo.  542,  10 
505;    Bank    of    Commerce    v.    Cham-       S.  W.  140'. 
bers,    96    Mo.    459;    Humphreys    v. 


§  345  EQUITY    JURISPRUDENCE.  634 

the  jurisdiction  according  to  its  original  unabridged  extent 
and  nature.2 

§  345.    Extent  of  the  General  Statutory  Jurisdiction. — 

The  statutes  of  the  remaining  states  composing  the  first, 
second,  and  fourth  classes  as  heretofore  arranged,  are,  with 

§  344,  2  South  Carolina.— Hall  v.  Joiner,  1  S.  C.  186,  190,  per  Willard, 
J. :  "In  this  state,  the  exclusion  of  courts  of  equity  from  jurisdiction  in 
cases  where  an  adequate  remedy  is  conferred  at  law  rests  on  the  statute; 
consequently  a  new  remedy  at  law  operates  to  destroy  the  pre-existing 
remedies  in  equity  allowed  for  want  of  such  legal  remedy";  citing  Eno  v. 
Calder,  14  Rich.  Eq.  154.**  Upon  this  principle  it  was  held  that  the  suit 
for  a  discovery  had  been  abrogated  by  the  statutes  authorizing  parties  to 
actions  to  be  called  as  witnesses.  In  the  case  cited  (Eno  v.  Calder,  14  Rich. 
Eq.  154),  Dunkin,  C.  J.,  stated  the  same  rule  of  interpretation  in  the 
same  terms;  but  his  remark  was  a  mere  dictum^  entirely  unnecessai'y  to 
the  decision  of  the  case,  which  could  not,  according  to  any  theory,  have 
been  sustained  as  coming  within  the  equity  jurisdiction,  being  a  suit  to 
recover  a  simple  legal  debt  without  the  slightest  equitable  incident  or 
feature.  For  an  account  of  the  early  jurisdiction  in  this  state,  see  Matti- 
son  V.  Mattison,  1  Strob.  Eq.  387,  391,  47  Am.  Dec.  541. 

Connecticut. — Norwich,  etc.,  R.  R.  v.  Storey,  17  Conn.  364,  370,  371, 
holds  that  it  is  the  fundamental  principle  guiding  the  courts  of  Connecticut, 
and  based  upon  the  statutory  restriction,  that  equity  has  no  jurisdiction 
where  the  legal  remedy  is  adequate.  The  doctrine  was  applied  to  a  suit 
for  an  accounting,  and  the  rule  was  laid  down  that  the  fact  of  the  accounts 
between  the  parties  being  numerous  and  complicated  does  not  give  juris- 
diction to  a  court  of  equity.  See,  also,  the  following  cases,  all  of  which 
show  that  the  jurisdiction  is  confined  strictly  by  the  statutory  limitation; 
they  also  determine  the  question  whether,  under  the  statutory  distribution 
of  power,  the  jurisdiction  of  a  particular  case  belongs  to  the  superior 
court  or  to  the  court  of  common  pleas :  Whittlesey  v.  Hartford,  etc.,  R.  R., 
23  Conn.  421,  431;  Stannard  v.  Whittlesey,  9  Conn.  559;  Stone  v.  Pratt, 
41  Conn.  285;  Hine  v.  New  Haven,  40  Conn.  478;  Gainty  v.  Russell,  40 
Conn.  450 ;  Griswold  v.  Mather,  5  Conn.  435,  438 ;  Hartford  v.  Chipman, 
21  Conn.  488,  498;  Swift  v.  Larrabee,  31  Conn.  225,  237;  Middleton  Bank 
V.  Russ,  3  Conn.  135,  139,  8  Am.  Dec.  164;  New  London  Bank  v.  Lee,  11 
Conn.  112,  121,  27  Am.  Dec.  713. 


§  344,   (b)   See,  also,  Solomons  v.        ttrictive  force  given  to  the  clause  in 

Shaw,  25  S.  C.  112.  this  state,  see  Equitable  Guarantee  & 

§344,    (c)    Delaware. — For   the   re-       T.  Co.  v.  Donahoe  (Del.),  45  Atl.  583. 


635  JUDICIAL   INTERPRETATION    OF    JURISDICTION.  §  345 

few  exceptions,  as  we  have  seen,  grants  of  general  equitable 
jurisdiction  described  in  somewhat  vague  terms,  but  all 
of  them  without  any  negative  language  or  express  limita- 
tion upon  the  nature  and  extent  of  this  jurisdiction.  In 
many  of  these  commonwealths  all  the  distinctive  methods 
of  procedure  belonging  to  the  English  court  of  chancery 
had  been  borrowed  without  substantial  change,  and  they 
even  remain  in  use  to  the  present  day.  In  others,  however, 
these  forms  and  modes  of  chancery  pleading  and  practice 
were  never  adopted;  but  in  their  stead  a  peculiar  hybrid 
system  of  administering  equitable  rights  and  interests  grew 
up,  based  partly  upon  statute  and  partly  upon  usage,  and 
resembling  as  much  the  proceedings  in  an  action  at  law  as 
those  in  a  suit  in  equity.^  It  naturally  followed  that  in 
these  last-mentioned  states  it  was  for  some  time  doubted — 
and  indeed  seems  to  have  been  an  open  judicial  question — 
whether  a  full  equitable  jurisdiction  was  in  fact  possessed 
by  the  courts.  Such  doubts,  however,  have  all  been  re- 
moved. The  doctrine  is  established  throughout  all  the 
states  now  under  consideration — whether  the  legislation 
confers  a  jurisdiction  in  express  terms  equivalent  to  that 
held  by  the  English  chancery,  or  confers"  such  a  jurisdic- 
tion by  implication,  or  in  abolishing  the  distinctions  between 
legal  and  equitable  forms  of  procedure  confers  a  jurisdic- 
tion to  decide  all  civil  actions — that  a  complete  equitable 
jurisdiction  commensurate  in  its  extent  with  that  belong- 
ing to  the  English  court  of  chancery,  and  coincident  in  its 
operation  with  the  entire  domain  of  equity  jurisprudence, 
exists  in  each  one  of  these  states,  is  possessed  by  some 
designated  tribunals,  and  may  be  exercised  by  them  in  the 
modes  of  procedure  established  or  sanctioned  by  law.^ 

§  345^  1  As,  for  example,  in  Georgia,  where  suits  in  equity  were  tried  by 
a  jury,  and  it  was  repeatedly  held  that  the  "chancellor"  consisted  of  the 
court  and  jury  together. 

§  345,  2  for  the  sake  of  completeness,  I  shall  include  in  this  list  the 
names  of  the  states  which  have  been  particularly  described  in  preceding 
paragraphs  and  notes,  merely  referring  to  theii-  former  place  of  treatment. 


§  346  EQUITY    JURISPRUDENCE.  636 

§  346.  Jurisdiction  Over  Administrations.^  —  Having- 
thus  described  the  theoretically  complete — and  in  most  mat- 
ters actually  complete — equitable  jurisdiction  existing  in 
most  of  the  states,  the  inquiry  still  remains  whether  any 

Alabama. — See  ante,  §  344,  and  note. 

Arkansas. — See  ante,  §  344,  and  note. 

California. — The  courts  possess  all  the  powers  of  a  court  of  chancery^ 
— a  full  jurisdiction  over  all  matters  of  equitable  cognizance :  Sanf ord  v. 
Head,  5  Cal.  297,  299;  Wilson  v.  Roach,  4  Cal.  362,  366;  Belloc  v.  Rogers, 
9  Cal.  123,  129;  Willis  v.  Farley,  24  Cal.  491,  499;  People  v.  Davidson,  30 
Cal.  380,  390 ;  Dougherty  v.  Creary,  30  Cal.  209,  297,  89  Am.  Dec.  116 ; 
People  v.  Houghtaling,  7  Cal.  348,  351;  Smith  v.  Rowe,  4  Cal.  6;  De  Witt 
V.  Hays,  2  Cal.  463,  468,  469,  56  Am.  Dec.  352.* 

Connecticut. — See  ante,  §  344,  and  note. 

Georgia. — The  equitable  jurisdiction  is,  in  general,  that  possessed  by  the 
court  of  chancei-y  in  England.  The  present  code  (§  3045)  confers  the 
jurisdiction  in  express  terms,  and  does  not  by  any  of  its  more  specific  pro- 
visions materially  change  that  jurisdiction :  Mordecai  v.  Stewart,  37  Ga. 
364,  375-377,  382;  Walker  v.  Morris,  14  Ga.  323,  325-327;  Collins  v. 
Barksdale,  23  Ga.  602,  610;  Williams  v.  Mclntyre,  8  Ga.  34,  42;  Beale  v. 
Ex'rs  of  Fox,  4  Ga.  404,  425,  426 ;  Gilbert  v.  Thomas,  3  Ga.  575,  579,  580 ; 
Justices  of  the  Inferior  Court,  etc.  v.  Hemphill,  9  Ga.  65,  67;  Cook  v. 
Walker,  15  Ga.  457,  466^73.»* 

Illinois. — The  general  equitable  jurisdiction  is  that  held  by  the  English 
chancery,  except  where  limited  by  an  express  statute,  or  where  some  other 
court  is  clothed  by  statute  with  exclusive  jurisdiction  over  a  particular 
matter:  Maher  v.  O'Hara,  4  Gilm.  424,  427;  Isett  v.  Stuart,  80  111.  404, 
22  Am.  Rep.  194.« 

Indiana. — A  full  equity  jurisdiction,  as  that  exercised  by  the  English 
court  of  chanceiy:  McCord  v.  Ochiltree,  8  Blackf.  15,  17-20  (containing 
an  interesting  historical  sketch  of  the  jurisdiction  during  the  ten-itorial 
period  and  since  the  organization  of  the  state) ;  Matlock  v.  Todd,  25  Ind. 
128. 

§  345,    (a)     California. — See,    also,  §  345,    (b)    Georgia. — Markham    v. 

Reay  v.  Butler,  69  Cal.  572,  579,  11  Huff,  72  Ga.  874. 

Pac.  463;  Nunez  v.  Morgan,  77  Cal.  §345,      (c)       Illinois. — Howell      v. 

427,  19  Pac.  753;  Wallace  v.  Maples,  Moores,    127   111.   67,    19   N.    E.   863; 

79  Cal.  433,  21  Pac.  860;  Arguello  v.  Walker  v.  Doane,  108  111.  236;  Ida  v. 

Bours,  67  Cal.  447,  8  Pac.  49;  Meeker  Sayer,  129  111.  230,  21  N.  E.  810. 

V.  Dalton,  75  Cal.   154,  16  Pac.  764;  §346,     (a)     Sections    346-352    are 

Helm  V.  Wilson,  76  Cal.  476,  18  Pac.  cited  in  Welsh  v.  Krause,  38  S.  D. 

604.  264,  161  N.  W.  189. 


637  JUDICIAL   INTERPEETATION    OP    JURISDICTION.  [}  o  46 

branches  or  subjects  originally  belonging  to  this  jurisdic- 
tion have  been  withdrawn  from  it  by  other  statutes,  so  that 
they  no  longer  come  within  the  ordinary  cognizance  of  the 
equity  courts.     One  very  conspicuous  branch  of  the  original 

Iowa. — A  distinct  and  full  equity  jurisdiction  recognized  and  preserved 
by  the  constitution:  Claussen  v.  Lafrenz,  4  G.  Greene,  224;  Laird  v. 
Dickerson,  40  Iowa,  665,  669;  Sherwood  v.  Sherwood,  44  Iowa,  192. 

Kansas. — A  full  chancery  jurisdiction  is  exercised  through  the  "civil 
action"  over  all  matters  belonging  to  the  general  equity  jurisprudence,  al- 
though the  constitution  makes  no  mention  of  any  distinction  between  law 
and  equity  or  legal  and  equitable  powers:  Sattig  v.  Small,  1  Kan.  170, 
175 ;  Shoemaker  v.  Brown,  10  Kan.  383,  390. 

Kentucky. — All  the  decisions  assume  and  recognize  the  jurisdiction  in 
this  state,  without  any  statutory  limit:  Johnson  v.  Johnson,  12  Bush,  485 
(a  full  equitable  jurisdiction  is  possessed  by  the  Louisville  chancery  court). 

Louisiana. — While  the  superior  courts  are  said  to  have  a  general  equity 
jurisdiction,  it  is  plain  that  the  "equity"  thus  spoken  of  is  not  exactly 
synonymous  with  the  system  of  equity  jurisprudence  administered  by  the 
court  of  chancery  in  England,  and  by  the  courts  of  the  other  states  in 
which  the  common  law  has  been  adopted.  The  term  is  used  in  the  meaning 
given  to  it  by  modern  civilians^  as  the  power  to  decide  according  to  natural 
justice  in  cases  where  the  positive  law  is  silent.  Thus  "in  all  civil  matters 
where  there  is  no  express  law,  the  judge  is  bound  to  proceed  and  decide 
according  to  equity.  To  decide  equitably,  an  appeal  is  made  to  natural 
law  and  reason,  or  to  received  usages,  where  positive  law  is  silent"  :*  Civ. 
Code,  art.  XXI. ;  Clarke  v.  Peak,  15  La.  Ann.  407,  409 ;  Welch  v.  Thorn, 
16  La.  188,  196;  Kittridge  v.  Breaud,  4  Rob.  (La.)  79,  39  Am.  Dec.  512. 

Maine. — See  ante,  §§  322-337,  and  notes. 

Maryland. — The  full  jurisdiction  of  the  English  chancery.  "The  chan- 
cery court  of  England  has  always  been  regarded  as  the  prototype  of  that 
of  Maryland.  ...  As  mere  courts  of  equity  there  is  scarcely  any  difference 
between  the  court  of  chancery  of  Maryland  and  that  of  England" :  Cun- 
ningham v.  Browning,  1  Bland,  299,  301 ;  Amelung  v.  Seekamp,  9  Gill  &  J. 
468,  472;  Manly  v.  State,  7  Md.  135,  146. 

Massachusetts. — See  ante,  §§  311-321,  and  notes. 

Michigan. — The  jurisdiction  of  the  English  court  of  chancery  is  given  in 
express  terms  by  the  statute.® 

§345,    (d)    See,   also,  Le  Blanc  v.  viding   for   a   final   decision   of   ques- 

City  of  New  Orleans,  138  Lra.  243,  70  fions  of  fact  in  equity  proceedings  by 

South.  213   (equity  decisions  of  other  thfe   verdict   of   a   jury,    was   declared 

states  must  be  followed  with  respect-  unconstitutional  in  Brown  v.  Buck,  75 

ful  caution).  Mich.   274,    13   Am.   St.   Rep.   438,   5 

§  345,  (e)   A  statute  of  1887,  pro-  L.  R.  A.  226,  42  N.  W.  827. 


§  346  EQUITY    JURISPRUDENCE.  638 

jurisdiction  has  been  thus  either  expressly  or  practically 
withdrawn  in  a  great  majority  of  the  commonwealths.  No 
department  of  the  equity  jurisdiction  and  jurisprudence  as 
administered  in  England  is  more  important,  or  more  f re- 
Minnesota. — A  full  jurisdiction  over  all  matters  cognizable  in  courts  of 
equity,  administered  by  the  one  "civil  action" :  Gates  v.  Smith,  2  Minn. 
30,  32. 

Mississippi. — A  complete  general  jurisdiction  in  equity  is  given  by  the 
constitution  and  by  the  statutes  to  the  court  of  chancery  as  the  tribunal 
of  first  resort,  and  to  the  high  court  of  errors  and  appeals  as  the  appellate 
tribunal.  This  jurisdiction  is  exercised  whenever  the  law  does  not  furnish 
a  complete,  certain,  and  adequate  remedy;  but  this  limitation  is  regarded 
as  an  element  inherent  in  the  very  nature  of  the  equitable  jurisdiction  it- 
self, and  not  as  a  mandatory  restriction  imposed  upon  the  court  by  statute. 
The  equitable  jurisdiction  has  always  been  asserted  and  exercised  by  the 
courts  of  Mississippi  in  as  free  and  progressive  a  manner  as  by  those  of 
any  other  state.  In  fact,  the  equity  system  of  Mississippi  is  much  more 
complete  than  that  to  be  found  in  many  of  the  states.  These  conclusions 
are  fully  sustained  by  the  following  decisions,  and  their  number  might 
easily  be  increased :  Shotwell  v.  Lanson,  30  Miss.  27 ;  Echols  v.  Hammond, 
>  30  Miss.  177;  Haynes  v.  Thompson,  34  Miss.  17;  Boyd  v.  Swing,  38  Miss. 
182;  Barnes  v.  Lloyd,  1  How.  584;  Freeman  v.  Guion,  11  Smedes  &  M. 
58,  65  (all  the  foregoing  cases  deal  with  the  question  of  there  being  an 
adequate  remedy  at  law  or  not) ;  Farish  v.  State,  2  How.  826,  829;  Farish 
V.  State,  4  How.  170,  175.  See,  also,  cases  cited  post,  §  350,  in  note,  as  to 
the  jurisdiction  in  the  administration  of  decedents'  estates. 

Missouri. — A  full  general  jurisdiction  as  held  by  the  English  chancery: 
Clark  V.  Henrj-'s  Adm'r,  9  Mo.  336,  339 ;  Cabanne  v.  Lisa,  1  Mo.  682 ;  Jan- 
ney  v.  Spedden,  38  Mo.  395;  Biddle  v.  Ramsey,  52  Mo.  153;  Meyers  v. 
Field,  37  Mo.  434,  441;  Maguire  v.  Tyler,  47  Mo.  115,  128;  Lackland  v. 
Garesche,  56  Mo.  267,  270. 

£ 

Nebraska. — A  full  jurisdiction  administered  by  the  single  civil  action: 
Wilcox  v.  Saunders,  4  Neb.  69. 

Nevada. — ^A  full  equity  jurisdiction  administered  by  the  single  civil  ac- 
tion in  all  cases  where  there  is  not  a  complete,  certain,  and  adequate 
remedy  at  law:  Champion  v.  Session,  1  Nev.  478;  Shei-man  v.  Clark,  4 
Nev.  138,  97  Am.  Dec.  516 ;  Conley  v.  Chedic,  6  Nev.  222. 

New  Hampshire. — See  atite,  §  §  299-310,  and  notes. 

New  Jersey. — A  full  general  jurisdiction  held  and  exercised  to  the  same 
extent  and  under  the  same  limitations  as  by  the  English  court  of  chancery. 

§  345,  (*)  Montana. — See  Zimmerman  v.  Zionmerman,  7  Mont.  114,  14  Pac. 
665. 


639  JUDICIAL   INTERPRETATION    OF    JURISDICTION.  §  346 

quently  demands  the  attention  of  the  chancery  courts,  than 
the  accounting,  final  settlement,  and  administration  of  the 
personal  estates  of  decedents.  A  very  large  percentage  of 
the  suits  brought  in  the  English  equity  tribunals  are  admin- 

The  whole  course  of  decisions  in  the  chancery  court  assumes  such  a  juris- 
diction, although  it  is  not  defined  by  any  legislation,  and  seldom  by  any 
judicial  opinion:  Jackson  v.  Darcy,  1  N.  J.  Eq.  194;  Wooden  v.  Wooden, 
3  N.  J.  Eq.  429;  Hopper  v.  Lutkins,  4  N.  J.  Eq.  149;  Hoagland  v.  Town- 
ship, etc.,  17  N.  J.  Eq.  106;  Winslow  v.  Hudson,  21  N.  J.  Eq.  172.  In  19 
N.  J.  Eq.,  at  page  577,  may  be  found  an  interesting  history  of  the  chan- 
cery court  in  New  Jersey,  written  by  Mr.  Chancellor  Zabriskie,  and  pub- 
lished as  an  appendix  to  the  volume.  See,  also,  post,  §  350,  and  note,  for 
decisions  concerning  the  jurisdiction  in  the  administration  of  decedents' 
estates. 

New  York. — An  equity  jurisdiction  commensurate  with  that  of  the 
English  chancery  is  expressly  given  by  the  legislation.  It  follows  that  the 
supreme  court,  and  the  other  tribunals  of  the  same  original  jurisdiction 
with  reference  to  subject-matter,  although  somewhat  restricted  as  to  per- 
sons within  certain  territorial  districts,  possess  all  the  jurisdiction  which 
was  held  by  the  equity  courts  of  the  colony  at  any  time,  and  which  was 
held  by  the  high  court  of  chancery  in  England  on  the  fourth  day  of  July, 
1776,  with  the  exceptions,  additions,  and  limitations  created  and  imposed 
by  the  legislation  of  the  state.  This  jurisdiction  is  now  exercised  by  means 
of  the  single  "civil  action."  It  will  be  seen  that  the  only  material  excep- 
tion or  limitation  created  by  the  state  legislation  consists  in  the  practical 
withdrawal  of  the  control  of  administrators  from  the  courts  of  equity, 
and  the  placing  of  that  important  branch  of  equity  jurisprudence  under 
the  cognizance  of  the  probate  or  surrogates'  courts.  The  decisions  involv- 
ing the  general  question  of  jurisdiction  are  exceedingly  numerous,  but 
they  all  show  that  the  equitable  powers  are  to  be  exercised  in  eveiy  case 
where  there  is  no  complete,  certain,  and  adequate  remedy  at  law,  but  that 
this  limitation  is  treated  as  an  essential  element  of  the  original  jurisdiction 
of  chancery,  and  not  as  abridging  or  curtailing  that  jurisdiction :  Sherman 
v.  Felt,  2  N.  Y.  186;  Newton  v.  Bronson,  13  N.  Y.  587,  591,  67  Am.  Dec. 
89;  Barlow  v.  Scott,  24  N.  Y.  40,  45;  Wilcox  v.  Wilcox,  14  N.  Y.  575,  579; 
Gareie  v.  Freeland,  1  N.  Y.  228,  232,  235;  Burch  v.  Newbury,  10  N.  Y. 
374,  387;  Onderdonk  v.  Mott,  34  Barb.  106,  112;  Boyd  v.  Dowie,  65  Barb. 
237,  242;  Brockway  v.  Jewett,  16  Barb.  590,  592;  Gareie  v.  Sheldon,  3 
Barb.  232;  Matter  of  Bookhout,  21  Barb.  348,  349;  De  Hart  v.  Hatch,  3 
Hun,  375,  380 ;  Matter  of  McConihe  v.  Exchange  Bank,  49  How.  Pr.  422, 
424:  Fellows  v.  Herrmans,  13  Abb.  Pr.,  N.  S.,  1,  6;  Van  Pelt  v.  U.  S. 
Metallic  Springs,  etc.,  Co.,  13  Abb.  Pr.,  N.  S.,  325,  327.     In  Youngs  \. 


§  346  EQUITY    JURISPRUDENCE.  640 

ifctration  suits.  I  shall  not  attempt  to  discuss  tlie  origin  of 
this  jurisdiction  over  administrations.  By  some  judges  it 
has  been  described  as  a  natural  outgrowth  of  the  authority 
over  trusts ;  by  others,  as  resulting  from  the  frequent  neces- 
sity of  applying  to  the  court  of  chancery  for  a  discovery  of 

Carter,  10  Hun,  194,  197,  it  was  held  that  the  equity  jurisdiction  thus 
given  "includes  of  necessity  all  cases  properly  comprehended  within  estab- 
lished principles  of  equity  jurisprudence.  Nor  can  the  test  of  the  juris- 
diction be  restricted  to  the  existence  of  some  definite  precedent  for  the 
action  which  may  be  brought;  the  case  need  only  fall  within  the  limits  of 
any  defined  equitable  principle;  and  equitable  principles  are  as  broad  as 
the  just  wants  and  necessities  of  civilized  society  require."  This  is,  in  my 
opinion,  a  correct  description  of  the  equitable  jurisdiction  as  it  now  exists 
in  all  the  states  of  the  three  classes  under  consideration.  Compare  the 
equally  correct  views  of  Mr.  Justice  Currey,  in  Dougherty  v.  Creary,  30 
Cal.  290,  297,  89  Am.  Dec.  116. 

North  Carolina. — Complete  jurisdiction  exercised  according  to  the  in- 
herent limitation  when  there  is  no  certain  and  complete  remedy  at  law, 
enforced  at  present  by  the  one  "civil  action" :  Glasgow  v.  Flowers,  1  Ha3Tv. 
(N.  C.)  233;  Perkins  v.  Bullinger,  1  Hayw.  (N.  C.)  367;  Martin  v.  Spier, 
1  Hayw.  (N.  C.)  369;  Wells  v.  Goodbread,  1  Ired.  Eq.  9;  Thorn  v.  Will- 
iams, 1  Car.  Law  Rep.  362;  Hook  v.  Fentress,  Phill.  Eq.  299,  233;  Powell 
V.  Howell,  63  N.  C.  283. 

Ohio. — The  equitable  jurisdiction  is  the  same  as  that  held  by  the  English 
chancery.  The  early  statute  confining  the  jurisdiction  to  the  cases  where 
there  is  no  plain  and  adequate  remedy  at  law  merely  states  an  essential 
rule,  and  leaves  the  jurisdiction  in  exactly  the  same  condition  which  it 
would  have  occupied  had  there  been  no  such  express  statutory  provision : 
Hulse  V.  Wright,  Wright,  61,  65 ;  Bank  of  Muskingum  v.  Carpenter's  Ad- 
ministrator, Wright,  729,  732;  Critchfield  v.  Porter,  3  Ohio,  518,  522; 
Oliver  V.  Pray,  4  Ohio,  175,  192,  19  Am.  Dec.  595;  Heirs  of  Ludlow  v. 
Johnson,  3  Ohio,  553,  561,  17  Am.  Dec.  609 ;  Cram  v.  Green,  6  Ohio,  429, 
430 ;  Mawhorter  v.  Armstrong,  16  Ohio,  188 ;  Douglas  v.  Wallace,  11  Ohio, 
42,  45;  Nicholson  v.  Pim,  5  Ohio  St.  25;  Lessee  of  Love  v.  Truman,  10 
Ohio  St.  45,  55;  Clayton  v.  Frat,  10  Ohio  St.  544,  546;  Goble  v,  Howard, 
10  Ohio  St.  165,  168 ;  Hager  v.  Reed,  11  Ohio  St.  626,  635 ;  Dixon  v.  Cald- 
well, 15  Ohio  St.  412,  415,  86  Am.  Dec.  487. 

Oregon.— See  ante,  §  344,  and  note;  Howe  v.  Taylor,  6  Or.  284,  291,  292; 
Wells,  Fargo  &  Co.  v.  Wall,  1  Or.  295;  Hatcher  v.  Briggs,  6  Or.  31,  41. 

South  Carolina. — See  ante,  §  344,  and  note;  Hall  v.  Joiner,  1  S.  C.  186, 
190;  Eno  v.  Calder,  14  Rich.  Eq.  154;  Mattison  v.  Mattison,  1  Strob.  Eq. 
387,  391,  47  Am.  Dec.  541.  See,  also,  1  Desaus.  Eq.  lii.,  for  a  sketch  of  the 
chancery  jurisdiction  in  this  state. 


641  JUDICIAL    INTERPRETATION    OF    JURISDICTION.  §  346 

assets;  by  all,  it  is  admitted  that  no  adequate  relief  could 
be  obtained  from  the  common  law  or  tlie  ecclesiastical 
courts.  "Whatever  be  the  correct  explanation,  the  result 
was  that  the  equitable  jurisdiction  of  administrations, 
though  often  called  concurrent,  practically  became  exclu- 
sive. 

Tennessee. — A  complete  general  equitable  jurisdiction  exercised  under 
the  inherent  limitation  that  no  certain  and  adequate  remedy  can  be  had  at 
law:  Dibrell  v.  Eastland,  3  Yerg.  533,  535;  University  v.  Cambreling,  6 
Yerg.  79,  84;  Porter  v.  Jones,  6  Cold.  313,  317;  Almony  v.  Hicks,  3  Head, 
39,  42.» 

Texas. — There  is  not  in  the  jurisprudence  of  this  state  any  clear  line  of 
distinction  between  "law"  and  "equity,"  either  with  reference  to  the  rules 
which  define  and  determine  primary  rights  and  duties,  or  those  which  regu- 
late remedies  and  procedure.  Although  the  principles  of  the  common  law 
have  been  adopted  by  statute,  yet  they  are  blended  with  and  modified  by 
equity.  This  "equity"  seems  in  part  to  be  the  natural  justice  of  the 
civilians,  but  also  in  large  part  the  equitable  jurisprudence  developed  by 
the  English  court  of  chancery.  It  may  with  accuracy  be  said  that  the 
courts  of  Texas  have  full  jurisdiction  to  recognize  and  give  effect  to  any 
principles  and  doctrines  of  the  equity  jurisprudence  to  maintain  any 
equitable  rights,  and  to  gi'ant  any  equitable  remedies.  All  rights  and 
remedies,  whether  legal  or  equitable,  are  administered  together  by  one  ac- 
tion and  in  the  same  modes  of  procedure.  These  conclusions  will  be  found 
fully  sustained  by  the  following  decisions,  and  are  assumed  or  implied  in 
a  great  number  of  other  cases:  Ogden  v.  Slade,  1  Tex.  13,  15;  Smith  v. 
Clopton,  4  Tex.  109,  113;  Spann  v.  Stem's  Administrators,  18  Tex.  556; 
Seguin  v.  Maverick,  24  Tex.  526,  532,  76  Am.  Dec.  117;  Herrington  v. 
Williams,  31  Tex.  448,  460,  461;  Jones  v.  McMahan,  30  Tex.  719,  728; 
Newson  v.  Chrisman,  9  Tex.  113,  117;  Smith  v.  Smith,  11  Tex.  102,  106; 
Coles  V.  Kelsey,  2  Tex.  541,  553,  47  Am.  Dec.  661 ;  Carter  v.  Carter,  5 
Tex.  93,  100;  Wells  v.  Barnett,  7  Tex.  584,  586,  587;  Purvis  v.  Sherrod, 
12  Tex.  140,  159,  160. 

Vermont. — The  decisions  assume  a  full  general  equitable  jurisdiction, 
with  perhaps  a  somewhat  greater  weight  given  to  the  limitation  that  there 
is  no  adequate  remedy  at  law  than  is  given  to  it  by  the  courts  of  many 
other  states:  Barrett  v.  Sargent,  18  Vt.  365,  369.  ■ 

Wisconsin. — A  full  jurisdiction  in  all  matters  of  equitable  cognizance, 
administered  by  the  "civil  action":  Janesville  Bridge  Co.  v.  Stoughton,  1 
Pinn.  667;  Danaher  v.  Prentiss,  22  Wis.  311. 

§345,  (g)    See,    especially,    J.    W.       25  L.  R.  A.   (N.  S.)   201,  123  S.  W. 
Kelly  &  €o.  v.  Oonner,  122  Tenn.  339,       622,  625. 
1—41 


§  §  347,  348  EQUITY    JUKISPRUDENCE.  642 

§  347.  Probate  Courts. — From  a  very  early  period  of  our 
history  the  policy  has  prevailed  throughout  the  states  of 
legislating  with  respect  to  the  subject  of  administrations. 
This  policy  has  been  pursued  with  such  uniformity  and  to 
6uch  an  extent,  that  in  all  the  states,  I  believe  without  ex- 
ception, special  tribunals,  unknown  to  the  ancient  judicial 
system  of  England,  have  been  created,  under  different 
names, —  probate  courts,  surrogates'  courts,  orphans^ 
courts, — which  possess  a  statutory  jurisdiction  over  all 
matters  of  probate  and  administration,  the  proof  of  wills, 
the  appointment  of  executors  and  administrators,  the  ac- 
counts of  executors  and  administrators,  the  final  settlement 
and  distribution  of  the  estates  of  deceased  persons,  both 
testate  and  intestate,  and  many  other  kindred  subjects. 
Not  only  have  such  courts  been  established,  but  in  very 
many  states  the  doctrines  and  rules  of  the  law  regulating 
the  administration  of  decedents'  estates,  whether  testate  or 
intestate,  have  been  reduced  to  a  statutory  and  often  to  a 
minutely  codified  form.  The  provisions  of  these  statutes 
are  to  a  large  extent  the  principles  and  doctrines  concern- 
ing the  subject-matter  which  have  been  settled  by  the  Eng- 
lish and  American  courts  of  equity  through  a  long  course 
of  decision.  The  effect  of  this  entire  legislation  upon  the 
equitable  jurisdiction  existing  in  the  same  states  remains  to 
be  considered. 

§  348.a  Class  First.  Ordinary  Equity  Jurisdiction  Over 
Administrations  Abolished. — The  general  effect  produced 
by  this  legislative  system  may  be  briefly  stated  in  one  prop- 
osition. In  a  great  majority  of  the  states  the  original  equi- 
table jurisdiction  over  administrations  is  in  all  ordinary 
cases — that  is,  in  all  cases  without  any  special  circum- 
stances, such  as  fraud,  or  without  any  other  equitable  fea- 
ture, such  as  a  trust — either  expressly  or  practically  abro- 
gated.    The  courts  of  equity,  in  the  absence  of  such  special 

§  348,  (a)  This  and  the  two  follow-  v.  Wilkinson,  199  Fed.  673,  118  C.  C. 
ing  paragraphs  are  cited  in  Newberry      A.  111. 


643  JUDICIAL    INTERPRETATION    OF    JURISDICTION.  §  348 

circumstances  or  distinctively  equitable  feature,  either  do 
not  possess  or  will  not  exercise  the  jurisdiction,  but  leave 
the  whole  matter  of  administrations  to  the  special  probate 
tribunals.  To  describe  this  result  more  accurately,  the 
states  must  be  separated  into  two  divisions.  In  the  one 
class,  the  statutes  creating  the  probate  courts  and  defining 
their  powers  are  drawn  in  such  mandatory  terms  that  the 
jurisdiction  conferred  upon  them  is  held  by  the  judicial  in- 
terpretation to  be  exclusive;  and  no  concurrent  jurisdiction 
over  administration  is  possessed  by  the  courts  of  equity  in 
any  case,  unless  it  involves  some  additional  incident  or  fea- 
ture— such  as  trust  or  fraud — which  of  itself,  and  inde- 
pendently of  the  administration,  would  be  a  sufficient 
ground  for  the  interference  of  an  equity  court.  In  other 
words,  this  most  important  and  extensive  department  has 
been  completely  cut  off  from  the  purely  equitable  jurisdic- 
tion, and  transferred  to  that  of  the  probate  courts,  although 
most  of  the  doctrines  concerning  administration  in  general, 
hitherto  settled  by  the  courts  of  equity,  and  which  form  an 
integral  part  of  the  equity  jurisprudence,  have  been  pre- 
served and  made  more  compulsory  in  the  statutes  which 
regulate  the  proceedings  and  furnish  rules  for  the  decisions 
of  these  special  probate  tribunals. ^ 

§  348,  1  The  decisions  by  which  the  result  described  in  the  text  has  been 
accomplished  throughout  the  various  states  composing  this  class  are  col- 
lected and  compared  in  this  note. 

Mississippi. — This  view  of  the  equitable  jurisdiction  for  a  long  time  pre- 
vailed in  the  state  of  Mississippi  and  was  regarded  as  settled  in  the  fol- 
lowing among  many  other  cases :  Gilliam  v.  Chancellor,  43  Miss.  437,  448, 
5  Am.  Rep.  498;  Blanton  v.  King,  2  How.  856;  Carmichael  v.  Browder,  3 
How.  252 ;  but  by  an  alteration  in  the  statutes,  and  a  change  in  the  judicial 
interpretation,  and  especially  by  the  latest  constitution  reconstructing  the 
judiciary,  this  theory  has  been  abandoned,  and  the  original  jurisdiction  of 
equity  over  administrations  has  been  fully  re-established,  as  will  appear 
in  the  note  under  the  next  paragraph.  The  line  of  decisions,  of  which 
the  above  are  examples,  have  therefore  been  overruled. 

Pennsylvania. — The  doctrine  of  the  text  is  firmly  settled  in  this  state  by 
numerous  decisions,  of  which  the  following  are  among  the  most  recent. 


§  349  EQUITY    JURISPRUDENCE,  644 

'§  349.  Class  Second.  Such  Jurisdiction  Practically  Ob- 
solete.— In  the  other  and  more  numerous  division,  the  stat- 
utes creating  the  probate  courts  and  defining  their  powers 
are  not  so  negative  and  mandatory  in  their  terms  that  they 
ipso  facto  render  the  probate  jurisdiction  absolutely  exclu- 
sive. The  equitable  jurisdiction  is  theoretically  left  exist- 
ing, and  is  sometimes  spoken  of  as  "concurrent  with,"  and 
sometimes  as  "auxiliary  to,"  that  of  the  probate  courts. 
Practically,  however,  it  is  abolished,  or  perhaps  it  would 
be  more  strictly  accurate  to  say  that  its  exercise  is  sus- 
pended, in  all  ordinary  cases.  The  meaning  of  this  propo- 
sition as  explained  in  varying  language  by  different  judges 
is,  that  unless  the  case  involves  some  special  feature  or 
exceptional  circumstances  of  themselves  warranting  the  in- 
terference of  equity,  such  as  fraud,  waste,  and  the  like,  or 
unless  it  is  of  such  an  essential  nature  that  a  probate  court 
is  incompetent  to  give  adequate  relief,  or  is  one  of  which 
the  probate  court,  having  taken  cognizance,  has  completely 
miscarried  and  failed  to  do  justice  by  its  decree,  the  courts 
of  equity  will  refuse  to  interpose  and  to  exercise  whatever 
dormant  powers  they  may  possess,  but  will  leave  the 
subject-matter  and  the  parties  to  the  jurisdiction  of  the 
statutory  forum,  which  the  legislature  plainly  regarded  aa 
sufficient  and  intended  to  be  practically  exclusive.  Accord- 
ing to  this  theory,  the  courts  of  equity  do  not  deny  the 
existence  of  any  jurisdiction  over  administrations;  but 
they  treat  their  own  jurisdiction  as  auxiliary  and  supple- 
mentary, and  not  as  concurrent,  only  to  be  exercised  in 
the   exceptional  cases  where  the   probate  jurisdiction  is 

Dundas's  Appeal,  73  Pa.  St.  474,  479;  Linsenbigler  v.  Gourley,  56  Pa.  St. 
166,  172,  94  Am.  Dec.  51;  Whiteside  v.  Whiteside,  20  Pa.  St.  473,  per 
Black,  C.  J.;  Campbell's  Appeal,  80  Pa.  St.  298. 

Massachusetts. — This  state  may  also  be  included  in  the  class,  although 
the  extent  of  its  equitable  system  has  already  been  described:  Wilson  v. 
Leisman,  12  Met.  316.  See  quotations  from  the  opinion  in  note  under 
§320. 


645  JUDICIAL    INTERPRETATION    OF    JURISDICTION.  §  349 

confessedly  inadequate,  or  has  actually  shown  itself  in- 
sufficient. ^  * 

§  349,  1  The  following  states  properly  belong  to  this  division,  although 
it  will  be  seen  by  examining  the  decisions  that  a  somewhat  varying  lan- 
guage has  been  employed  by  different  courts  to  describe  the  condition  of 
the  jurisdiction : 

Arkansas. — In  Haag  v.  Sparks,  27  Ark.  594,  it  was  held  that  generally 
sourts  of  equity  will  not  take  jurisdiction  of  an  administration  when  it 
is  before  the  probate  court;  citing  Moren  v.  McCown,  23  Ark.  93;  Free- 
man V.  Reagan,  26  Ark.  373.  But  when  the  circumstances  are  special, 
and  the  probate  court  cannot  give  adequate  relief,  equity  will  take  juris- 
diction. In  Freeman  v.  Reagan,  26  Ark.  373,  378,  the  rule  was  stated 
that  courts  of  chancery  will  not,  in  general,  take  jurisdiction  of  an  ad- 
ministration going  on  before  the  probate  court;  but  still  there  may  be 
cases  of  fraud,  waste,  etc.,  which  would  enable  courts  of  chancery  to  inter- 
fere, and  exercise  powers  not  held  by  the  probate  court.  In  applying  this 
rule,  it  may  be  remarked  that  whenever  a  probate  court  has,  in  any  case, 
issued  letters  testamentary  or  of  administration,  admitted  a  will  to  probate, 
or  taken  any  other  judicial  step,  the  administration  will  then  be  "pending" 
or  "going  on  before"  such  probate  court  within  the  meaning  of  the 
language  above  quoted. 

Connecticut. — Bailey  v.  Strong,  8  Conn.  278,  280. 

Georgia.— B.arris  v.  Tisereau,  52  Ga.  153,  159-163,  21  Am.  Rep.  242, 
The  probate  court  has,  in  all  ordinary  eases,  an  exclusive  jurisdiction  in 
the  probate  of  wills,  in  the  appointment  of  executors  and  administrators, 
and  in  administrations ;  citing  Georgia  Code,  §  331 ;  Slade  v.  Street,  27  Ga. 
17;  and  Walton  v.  Walton,  21  Ga.  13.  But  equity  has  full  jurisdiction  in 
all  cases  of  fraud ;  and  where  fraud  thus  exists,  it  may  draw  after  it  as  an 
incident  a  jurisdiction  over  matters  of  administration.  It  had  been  held 
in  an  early  case,  decided  under  a  former  statute,  that  the  original  juris- 
diction of  equity  in  administrations  still  existed  in  Georgia :  Walker  v. 
Morris,  14  Ga.  323,  325-327;  but  this  decision  is  no  longer  an  authority. 
See,  also,  Collins  v.  Stephens,  58  Ga.  284. 

Illinois. — Heustis  v.  Johnson,  84  111.  61;  Freeland  v.  Dazey,  25  111.  294. 
In  Heustis  v.  Johnson,  84  111.  61,  which  was  a  suit  in  equity  against  an 
administrator  for  a  final  accounting  and  settlement,  the  court  stated  the 
rule :  "Courts  of  equity  wiU  not  exercise  jurisdiction  over  the  adminis- 
tration of  estates  except  in  extraordinary  cases.  Some  special  reason  must 
be  shown  why  the  administration  should  be  taken  from  the  probate  court ;" 
citing  Freeland  v.  Dazey,  25  111.  294;  and  see  Strubher  v.  Belsey,  79  III. 

§  349,  (a)  The  text  is  quoted  and  followed  in  Welsh  v.  Krause,  38  S.  D. 
264,  161  N.  W.  189. 


§  350  EQUITY    JURISPRUDENCE.  646 

§350.  Class  Third.  Such  Jurisdiction  Existing  and 
Concurrent. — There  is,  however,  still  a  third  division,  com- 
prising a  few  of  the  states,  in  which,  notwithstanding  the 
probate  courts  with  all  the  powers  given  them  by  statute, 
the  original  and  full  equitable  jurisdiction  over  administra- 
tions  is   held  to   remain   unimpaired.     The   authority   of 

307,  308.  And  yet  in  Heward  v.  Slagle,  52  111.  336,  which  was  an  appeal 
by  the  distributees  (or  heirs)  from  a  decree  of  the  probate  court  finally 
settling  the  administrator's  accounts,  the  supreme  court  said:  ''When  the 
probate  court  has  settled  an  administrator's  account,  and  discharged  the 
administrator,  and  the  heirs  are  dissatisfied  and  wish  a  review  and  resettle- 
ment, and  the  estate  is  complicated,  the  better  mode  is  by  a  bill  in  chancery, 
and  not  by  appeal  from  the  probate  court." 

New  Jersey.— Frey  v.  Demarest,  16  N.  J.  Eq.  236,  239.  For  a  state- 
ment of  this  decision  and  a  more  full  explanation  of  the  rule  which  seems 
to  prevail  in  New  Jersey,  see  the  note  under  the  next  succeeding  paragraph. 

New  Torfc.— Chipman  v.  Montgomery,  63  N.  Y.  221,  235,  236.  Since 
this  decision  is  quite  recent,  and  since  the  reasoning  and  conclusions  of  the 
court  will  apply  with  equal  force  to  the  legislation  of  many  other  states 
besides  New  York,  and  fully  illustrate  the  propositions  of  the  text,  I  shall 
quote  from  the  able  opinion  of  Allen,  J.,  at  some  length.  The  suit  was 
equitable,  brought  by  next  of  kin  against  an  executor,  praying  various 
kinds  of  relief.  In  dismissing  the  suit,  the  court,  by  Allen,  J.,  said 
(pp.  235,  236)  :  "Again,  as  an  action  for  accounting  as  to  the  personalty, 
as  in  case  of  intestacy,  the  action  ought  not  to  be  sustained.  The  laws 
give  full  powers  to  the  surrogate's  court  to  call  executors  and  adminis- 
trators to  account,  and  to  distribute  the  estate  among  the  next  of  kin,  and 
to  pass  upon  every  question  that  may  arise,  directly  or  indirectly,  in  the 
progress  of  the  accounting  and  final  distribution.  That  is  the  appropriate 
tribunal,  conceding  that,  to  a  limited  extent,  concurrent  jurisdiction  exists 
in  a  court  of  equity.  The  jurisdiction  of  courts  of  equity  in  respect  to 
accounts  in  the  course  of  administration,  and  the  marshaling  of  assets, 
grew  out  of  the  defects  in  the  process  and  powers  of  ecclesiastical  courts, 
and  the  early  courts  of  probate.  The  jurisdiction  over  cases  of  adminis- 
tration was  made  to  rest  upon  the  notion  of  a  constructive  trust  in  execu- 
tors and  administrators,  as  well  as  the  necessity  of  taking  accounts  and 
compelling  a  discovery.  But  these  considerations  do  not  apply  in  ordinary 
cases  to  the  settlement  of  estates  in  this  state;  and  to  withdraw  a  case  of 
mere  settlement  of  an  estate,  disconnected  with  the  enforcement  of  a  spe- 
cial and  express  trust,  as  distinguished  from  what  is  called  a  constructive 
trust  in  all  administrations,  from  the  tribunal  created  for  that  purpose 
with  ample  powers,  special  reasons  should  be  assigned,  and  facts  stated 


647  JUDICIAL    INTERPRETATION    OF    JURISDICTION.  §  350 

courts  of  equity  over  the  general  subject  of  administration, 
which  forms  a  part  of  the  unabridged  system  of  equity 
jurisprudence,  still  continues  in  those  tribunals  concurrent 
with  that  conferred  upon  the  probate  courts,  and  it  may  be 
exercised  even  though  the  case  does  not  involve  any  spe- 
cial incidents  or  features  which  of  themselves  would  consti- 

to  show  that  full  and  complete  justice  cannot  be  done  in  that  court.  Upon 
a  final  accounting, — and  that  is  what  the  plaintiffs  are  entitled  to  if  they 
have  any  rights  as  next  of  kin,— creditors,  as  well  as  legatees  and  next  of 
kin,  are  entitled  to  be  heard;  and  they  may  much  more  easily  be  cited  be- 
fore a  surrogate  than  made  parties  to  a  formal  suit  in  equity.  Chancellor 
Kent  recognizes  the  rule  that  creditors  may  come  into  the  court  of  chancery 
for  the  discovery  of  assets;  but  that  draws  the  whole  settlement  of  the 
estate  into  chancery,  which  certainly  is  not  to  be  encouraged :  Thompson  v. 
Brown,  4  Johns.  Ch.  619.  In  Seymour  v.  Seymour,  4  Johns.  Ch.  409,  the 
chancellor  refused  to  take  jurisdiction,  and  interfere  with  the  ordinary  ex- 
ercise of  the  powers  of  the  surrogate  in  the  settlement  of  the  accounts  of 
administrators  and  the  distribution  of  the  estate,  without  some  special 
reasons  set  forth  in  the  bill.  The  province  of  the  court  of  chancery  was 
to  aid  by  a  discovery,  and  when  necessary  by  injunction,  the  courts  of 
surrogates  in  the  exercise  of  their  general  powers,  and  the  jurisdiction 
should  be  regarded  rather  as  auxiliary  than  concurrent.  But  there  is  no 
action  now  possible  for  a  discovery,  and  the  plaintiffs  do  not  make  a  case 
for  or  ask  for  an  injunction.  It  is  not  optional  with  executors  and  admin- 
istrators accounting  on  their  own  motion,  or  creditors,  legatees,  or  next 
of  kin  calling  them  to  an  accounting,  to  pass  by  the  surrogate's  court 
having  ample  jurisdiction  in  the  premises,  and,  without  assigning  any 
special  reasons,  proceed  by  formal  action  in  equity,  making  all  persons 
whose  presence  is  necessary  to  a  final  accounting  parties  to  the  action.  It 
would  be  unreasonable  to  subject  the  parties  to  the  vexation  and-  delay, 
and  the  estate  to  the  unnecessary  costs,  of  such  a  litigation:  Adams  v. 
Adams,  22  Vt.  50." 

Ohio— Fiatt  v.  Longworth's  Ex'rs,  27  Ohio  St.  159,  186 :  "Since  the  act 
of  1853,  the  probate  court  has  exclusive  jurisdiction  of  the  settlement  of 
the  accounts  of  executors  and  administrators.  When  that  remedy  proves 
inadequate,  the  aid  of  a  court  of  equity  may  be  invoked." 

Rhode  Island. — Blake  v.  Butler,  10  R.  I.  133,  137,  138.  An  adminis- 
trator had  filed  his  accounts  in  the  probate  court,  and  a  final  decree  of 
settlement  and  distribution  had  been  made  therein.  The  plaintiffs — next 
of  kin — appealed  to  the  supreme  court  under  the  statute.  Pending  this 
appeal  the  plaintiffs  commenced  a  suit  in  equity  in  the  supreme  court 
against  the  administrator,  charging  fraud  in  the  administration  and  in  his 


§  350  EQUITY    JURISPRUDENCE.  648 

tute  distinctive  and  independent  grounds  of  equitable  inter- 
ference. This  continued  existence  of  an  active  equitable 
jurisdiction  results  in  some  instances  from  positive  provi- 
sions of  the  legislation,  in  others  from  the  merely  permis- 
sive terms  of  the  statute  defining  the  powers  of  probate 
courts,  or  perhaps  from  the  absence  of  any  negative  or  suffi- 
ciently mandatory  language.^ 

accounts,  and  praying  for  general  relief,  an  accounting,  and  settlement. 
The  sui^reme  court  held  that  it  had  no  jurisdiction  of  the  suit  under  such 
circumstances;  that  the  plaintiff  could  obtain  full  relief  in  the  probate 
court  or  on  the  appeal;  that  the  jurisdiction  in  equity  is  only  concurrent 
with  that  of  the  probate  court,  and  the  jurisdiction  of  the  probate  court 
having  first  attached  thereby  became,  under  a  general  principle,  exclusive. 
According  to  this  decision,  the  doctrine  adopted  in  Rhode  Island  is,  per- 
haps, not  in  full  harmony  with  the  proposition  formulated  in  the  text;  it 
appears  that  equity  has  an  active  concurrent  jurisdiction  over  adminis- 
trations, and  may  regulate  and  decree  the  settlement  of  decedents'  estates. 
Still,  the  state  can  hardly  be  regarded  as  fully  belonging  to  the  third  class, 
described  in  the  next  succeeding  paragraph. 

§  350,  1  The  following  states  may  properly  be  placed  in  this  division : — 
Mississippi. — Walker  v.  State,  53  Miss.  532,  535 ;  Bank  of  Miss.  v.  Dun- 
can, 52  Miss.  740;  Brunini  v.  Pera,  54  Miss.  649;  Evans  v.  Robertson,  54 
Miss.  683,  In  Walker  v.  State,  53  Miss.  532,  the  court  held  that  under 
the  constitution  of  1832,  the  rule  was  settled  that  chancery  had  no  juris- 
diction of  administration,  but  that  the  jurisdiction  belonged  exclusively 
to  courts  of  probate.  Under  the  present  constitution,  such  original  juris- 
diction has  been  restored  to  courts  of  equity,  and  they  may  entertain  suits 
for  administration  proper,  and  also  suits  upon  administration  bonds 
against  the  administrator  or  executor  and  his  sureties.  The  same  ruling  is 
repeated  in  the  other  cases  cited,  and  a  long  line  of  previous  decisions  is 
of  course  overruled. 

Neio  Jersey.— Trey  v.  Demarest,  16  N.  J.  Eq.  236,  238,  239.  In  this 
carefully  considered  case,  the  court  expressly  holds  that  the  concurrent 
jurisdiction  of  equity  with  the  probate  courts  over  the  administration  of 
assets  has  long  been  well  settled,  and  may  be  exercised  on  behalf  of  lega- 
tees, next  of  kin,  creditors,  and  executors  or  administrators.  The  suit  by 
a  next  of  kin  for  his  share  was  established  in  the  reign  of  Charles  II.  In 
New  Jersey,  the  equity  jurisdiction  over  the  accounts  of  executors  and  ad- 
ministrators, and  to  enforce  the  claims  of  creditors,  legatees,  and  next  of 
kin,  has  been  repeatedly  affirmed  and  is  constantly  exercised;  it  is  well 
settled,  and  also  its  limitations;  citing  Meeker  v.  Marsh,  1  N.  J.  Eq.  198; 
King  V.  Ex'rs  of  Bei-ry,  3  N.  J.  Eq.  44,  261;  Salter  v.  Williamson,  2 


649  JUDICIAL   INTERPBETATION    OF    JUEISDICTION.  §  351 

§  351.  Special  Subjects  of  Equitable  Cognizance  in  Aid 
of  Administrations. — While  the  original  jurisdiction  of 
equity  over  the  subject  of  administration  in  general  is  thus 
abolished  in  so  many  states,  the  power  to  interfere  for 
some  special  and  partial  purpose,  or  to  grant  some  special 
and  partial  relief  in  the  course  of  the  administration  and 
settlement  of  decedents'  estates,  exists  in  all  the  common- 
wealths as  a  part  of  the  general  functions  belonging  to 
equity  courts.^  The  jurisdiction  over  estates,  interests,  and 
primary  rights  purely  equitable,  and  to  administer  equi- 
table remedies,  is  nowhere  lost  merely  because  the  interest, 
right,  or  remedy  grows  out  of  or  is  connected  with  the 
estate  of  a  deceased  person  which  is  in  the  course  of  ad- 
ministration, even  though  the  administration  proper,  the 
accounting,  and  final  settlement  are  carried  on  under  the 
exclusive  supervision  of  another  tribunal.  In  all  such  cases 
the  jurisdiction  must,  of  course,  be  based  upon  some  dis- 
tinctive and  independent  ground  or  matter  of  equitable  cog- 
nizance, and  its  exercise  may  then  result  in  a  remedy  which 
is  a  material  aid  f  o  a  pending  administration,  or  which  re- 
moves an  impediment  from  the  final  settlement  of  an  estate ; 

N.  J.  Eq.  480,  489,  35  Am.  Dec.  513;  Smith  v.  Moore's  Ex'rs,  4  N.  J.  Eq. 
485;  Van  Mater  v.  Siekler,  9  N.  J.  Eq.  483;  Clark  v.  Johnston,  10  N.  J.  Eq. 
287.  To  this  explicit  statement  of  the  doctrine,  the  court  adds  a  conclu- 
sion which  may  seem  somewhat  inconsistent  with  it :  "But,  unless  for  some 
special  cause,  a  court  of  equity  will  not  interfere  with  the  ordinary  juris- 
diction of  the  probate  court  in  the  settlement  of  the  accounts  of  adminis- 
trators or  executors." 

Rhode  Island.— Blake  v.  Butler,  10  E.  I.  133,  137,  138.  See  the  state- 
ment of  this  case  and  comments  upon  it  in  the  note  under  the  preceding 
paragraph.  It  appears  that  in  Rhode  Island  the  equitable  jurisdiction 
of  the  supreme  court  is  concurrent,  and  of  course  may  be  exercised ;  but 
if  the  probate  court  has  already  taken  cognizance  of  a  particular  adminis- 
tration, equity  will  not  then  interfere,  unless  for  some  special  and  excep- 
tional reason,  but  will  leave  the  matter  under  the  exclusive  control  of 
the  probate  tribunal. 

§  351,    (a)    The   text   is    quoted   in       generally,  in  Cook  v.  Warner,  41  Okl. 
Settle   V.   Settle,    141    N.    C.   553,   54       781,  140  Pac.  424. 
S.   E.   445.     This  paragraph  is  cited, 


§  351  EQUITY    JURISPRUDENCE.  650 

as,  for  example,  the  construction  of  a  will  containing  trust 
provisions,  the  enforcement  of  trusts  created  by  a  will,  the 
establishment  of  a  will  lost  or  fraudulently  destroyed,  the 
canceling  and  setting  aside  a  fraudulent  transfer  made  by 
an  executor  or  administrator,  and  the  like.  Wliile  these 
and  similar  instances  of  the  reliefs  which  may  always  be 
furnished  by  courts  of  equity  are  not  in  any  sense  parts 
of  or  derived  from  the  original  jurisdiction  over  adminis- 
trations, and  have  not  therefore  been  withdrawn  from  the 
courts  by  the  legislation  on  the  subject,^  yet  they  may  prop- 
erly be  regarded  as  incidental  and  auxiliary  to  that  juris- 
diction, even  where  it  has  been  exclusively  intrusted  to  the 
probate  tribunals.  In  some  of  the  states  belonging  to  the 
second  division  as  described  above,  where  the  general 
equity  jurisdiction  over  administrations  is  not  absolutely 
abolished,  but  is  rather  suspended  or  dormant,  when  such 
a  suit  is  properly  brought  to  obtain  a  particular  relief 
which  necessarily  operates  to  aid  some  pending  administra- 
tion, or  to  remove  some  obstacle  from  its  completion,  the 
rule  is  settled,  in  accordance  with  a  familiar  principle,^ 
that  the  court,  having  thus  acquired  a  partial  jurisdiction 
over  the  subject-matter,  or  for  a  partial  purpose,  will  go 
on  and  decree  full  and  final  relief.  The  court  will  there- 
fore, in  addition  to  the  particular  remedy  demanded,  take 
control  of  the  entire  administration;  will  even  withdraw  it 
from  the  probate  court  if  already  begun  therein,  and  to  that 
end  will  enjoin  all  further  proceedings  before  such  tribunal, 
and  will  order  a  final  accounting  ancj  decree  a  final  settle- 
ment and  distribution,  whether  the  deceased  died  testate 
or  intestate. 2  c 

§  351,  1  See  ante,  chap.  II.,  see.  iii.,  §§  231-243. 

§  351,  2  Alabama. — Pearson  v.  Darrington,  21  Ala.  169,  176,  holds  that 
equity  has  jurisdiction  of  a  suit  brought  to  settle  the  accounts  of  compli- 

§  351,  (b)  See,  by  way  of  illustra-  §  351,    (c)    The    text    is    quoted    in 

tion,  Howell   v.  Moores,  127   111.   67,  Settle   v.    Settle,    141    N.    C.   553,    54 

19  N.  E.  863,  citing  th©  text;  ante,  S.  E.  445. 
§280. 


651  JUDICIAL   INTERPRETATION    OF    JURISDICTION.  §  352 

§  352.  Any  discussion  at  present  "of  the  cases  in  which 
a  court  of  equity  may  thus  interfere  and  grant  particular 
reliefs  connected  with  a  pending  administration,  which  will 
operate  in  aid  of  its  complete  settlement,  would  necessarily 
require  me  to  anticipate  many  subjects  properly  belonging 
to  subsequent  portions  of  this  work ;  I  have,  therefore,  for 
the  purpose  of  more  clearly  explaining  the  statements  of 
the  preceding  paragraph,  merely  placed  in  the  foot-note  a 
few  examples  which  will  sufficiently  illustrate  the  meaning 
of  the  text.i  ^     There  are  a  few  states  in  which,  by  the 

cated  transactions  entered  into  by  an  administrator,  and  to  enforce  the  due 
execution  of  tnists  created  by  a  will;  and  when  it  takes  jurisdiction  in 
such  a  case  by  the  commencement  of  a  suit,  the  whole  administration  is 
thereby  withdrawn  from  the  probate  court :  Cowles  v.  Pollard,  51  Ala.  445, 
447.  When  the  trusts  of  a  will  are  doubtful,  equity  has  jurisdiction  to 
construe  the  will  and  to  direct  the  executor  in  the  execution  of  its  pro- 
visions: Sellers  v.  Sellers,  35  Ala.  235;  Trotter  v.  Blocker,  6  Port.  269. 
And  when  chancery  takes  jurisdiction  upon  any  such  independent  ground 
of  equitable  cognizance,  it  will  retain  the  entire  administration  and  decree 
a  final  settlement  of  the  estate.  In  such  a  case  the  court  of  equity  will 
apply  the  same  rules  of  law  concerning  the  settlement  of  estates  which 
would  govern  the  probate  court,  but  in  its  procedure  will  follow  the 
methods  and  rules  of  chancery  practice :  Stewart  v.  Stewart,  31  Ala.  207 ; 
Wilson  V.  Crook,  17  Ala.  59 ;  Hunley  v.  Hunley,  15  Ala.  91 ;  Hall  v.  Wil- 
son, 14  Ala.  295 ;  Taliaferro  v.  Brown,  11  Ala.  702. 

New  Jersey. — Youmans  v.  Youmans,  26  N.  J.  Eq.  149;  and  Mallory  v. 
,  Craige,  15  N.  J.  Eq.  73.  In  a  suit  properly  brought  for  the  construction 
of  a  will,  all  parties  being  before  the  court,  a  final  accounting  by  the 
executor  and  settlement  of  the  estate  will  be  decreed. 

§  352,  1  This  jurisdiction,  based  upon  distinct  and  independent  grounds 
of  equitable  cognizance,  to  grant  remedies  which  will  more  or  less  directly 
aid,  or  remove  obstacles  from,  a  pending  administration  is  well  settled,  and 
constantly  exercised  for  the  following  purposes,  among  others :  To  construe 
doubtful  provisions  of  a  will,  and  to  direct  the  executors  with  respect  to 
their  duties  when  a  trust  is  created  by  it;  but  there  is  no  such  equitable 
jurisdiction  to  interpret  a  will — or  a  deed— which  only  deals  with  and 
disposes  of  purely  legal  estates  or  interests,  and  which  makes  no  attempt 
to  create  any  trust  relations  with  respect  to  the  property  donated.  This 
special  jurisdiction  to  interpret  a  will  is  wholly  an  outgrowth  and  applica- 

§  352,  (a)  The  text  and  note  are  667,  57  South.  442  (bill  to  construe 
cited  in  Ashurst  v.  Ashurst,  175  Ala.       will). 


§  352  EQUITY    JURISPRUDENCE.  652 

operation  of  peculiar  and  mandatory  language  of  the  stat- 
utes, certain  other  subjects  which  belong  to  the  equitable 
jurisdiction  in  its  original  form  have  been  withdrawn  from 
the  cognizance  of  equity  courts,  and  given  into  the  exclu- 
sive control  of  special  tribunals,  ordinarily  to  those  having 
probate  powers;  as,  for  example,  the  assignment  of  dower, 

tion  of  the  general  power  over  trusts:  Chipman  v.  Montgomery,  63  N.  Y. 
221,  230 ;  Bailey  v.  Briggs,  56  N.  Y.  407 ;  Post  v.  Hover,  33  N.  Y.  593,  C02, 
30  Barb.  312,  324;  Bowers  v.  Smith,  10  Paige,  194;  Woodruff  v.  Cook, 
47  Barb.  304;  Onderdonk  v.  Mott,  34  Barb.  106;  Walrath  v.  Handy,  24 
How.  Pr.  353 ;  Cowles  v.  Pollard,  51  Ala.  445,  447 ;  Youmans  v.  Youmans, 
26  N.  J.  Eq.  149 ;  Strubher  v.  Belsey,  79  111.  307,  308 ;  Whitman  v.  Fisher, 
74  111.  147;  Simmons  v.  Hendricks,  8  Ired.  Eq.  84,  85,  86,  55  Am.  Dec. 
439. 

The  doctrine  is  clearly  and  concisely  stated  by  Allen,  J.,  in  the  recent  ease 
of  Chipman  v.  Montgomery,  63  N.  Y.  221,  and  I  quote  a  short  passage 
from  his  opinion  at  page  230 :  "The  rule  is,  that,  to  put  a  court  of  equity 
in  motion,  there  must  be  an  actual  litigation  in  respect  to  matters  which 
are  the  proper  subjects  of  the  jurisdiction  of  that  court  as  distinguished 
from  a  court  of  law.  ...  It  is  by  reason  of  the  jurisdiction  of  courts  of 
chancery  over  trusts  that  courts  having  eqi;itable  powers  as  an  incident  of 
that  jurisdiction  take  cognizance  of  and  pass  upon  the  interpretation  of 
wills.  They  do  not  take  jurisdiction  of  actions  brought  solely  for  the 
construction  of  instruments  of  that  character,  or  when  only  legal  rights 
are  in  controversy.  Judge  Folger,  in  Bailey  v.  Briggs,  56  N.  Y.  407,  well 
expresses  the  rule  in  these  words :  'It  is  when  the  court  is  moved  on  be- 
half of  an  executor,  trustee,  or  cestui  que  trust,  and  to  insure  a  correct  ad- 
ministration of  the  power  conferred  by  a  will,  that  jurisdiction  is  had  to. 
give  a  construction  to  a  doubtful  or  disputed  clause  in  a  will.  The  juris- 
diction is  incidental  to  that  over  trusts.'  This  is  in  accord  with  all  the 
cases  in  which  the  question  has  been  considered  by  the  courts  in  this  state." 
Suits  based  upon  the  actual  fraud,  misconduct,  waste,  or  misappropriation 
of  funds  by  the  administrator  or  executor  in  the  performance  of  his 
fiduciary  duties,  either  to  set  aside  transfers  fraudulently  made  by  him, 
or  decrees  of  the  probate  court  fraudulently  obtained,  or  to  reach  property 
under  his  control  belonging  to  the  estate:  Clark  v.  Henry's  Adm'rs,  9 
Mo.  336;  Freeman  v.  Reagan,  26  Ark.  373,  378;  Haag  v.  Sparks,  27  Ark. 
594. 

Suits  to  establish  a  will  which  had  been  fraudulently  destroyed :  Harris 
V.  Tisereau,  52  Ga.  153,  159-163,  21  Am.  Rep.  242,  holds  that  equity  has 
full  jurisdiction  in  all  cases  of  fraud,  except  fraud  in  the  execution  of  a 
will,  and  this  includes  fraud  in  the  destruction  of  a  will,  notwithstanding 


653  JUDICIAL   INTERPRETATION    OF    JURISDICTION.  §  353 

and  the  partition  of  real  estate.  These  instances,  however, 
are  so  few  and  comparatively  unimportant  that  they  do  not 
substantially  affect  the  general  system  of  equitable  juris- 
diction existing  throughout  the  country,  and  their  con- 
sideration will  be  postponed  to  a  subsequent  chapter.  The 
radical  changes  in  the  doctrines  concerning  trusts  made  by 
the  legislation  of  several  states  belong  rather  to  the  equity 
jurisprudence  than  to  the  jurisdiction,  and  they  will  be  fully 
described  in  the  division  of  this  work  which  treats  of  equi- 
table estates. 

§  353.  States  Which  have  Adopted  the  Reformed  System 
of  Procedure. — In  dealing  finally  with  the  states  composing 
this  fourth  class,  I  shall  no  longer  inquire  into  the  extent 

the  jurisdiction  over  administrations  given  to  the  probate  court.  Suits 
to  aid  or  remove  an  obstacle  from  the  due  course  of  administration,  either 
by  establishing  or  setting  aside  a  settlement  mfide  by  the  decedent  upon  his 
wife,  and  by  determining  her  rights  under  it,  and  to  the  estate :  Campbell's 
Appeal,  80  Pa.  St.  298.  A  husband  had  executed  a  post-nuptial  settle- 
ment upon  his  wife,  and  afterwards  died,  leaving  a  will.  The  widow 
elected  not  to  take  under  the  will,  claiming  her  dower  and  share  of  the 
personal  property  as  though  her  husband  had  died  intestate.  She  also 
brought  suit  in  equity  to  set  aside  the  post-nuptial  settlement  on  account 
of  fraud.  The  equitable  jurisdiction  was  sustained;  the  decree  would 
remove  an  obstacle  to  the  settlement  and  distribution  of  the  estate  by  the 
probate  court,  and  it  was  not  an  invasion  of  the  jurisdiction  given  to  that 
tribunal  over  administration.  And  in  Carmichael  v.  Browder,  3  How. 
(Miss.)  252,  a  portion  had  been  given  to  a  wife  by  a  man-iage  contract, 
and  afterwards  a  legacy  by  her  husband's  will,  which  the  executor  claimed 
was  intended  to  be  in  satisfaction  of  the  portion,  but  the  widow  to  be  in 
addition  thereto.  A  suit  in  equity  to  determine  the  rights  of  the  widow 
under  the  nuptial  contract  and  the  will,  and  in  the  meantime  to  restrain 
her  from  suing  in  the  probate  court  to  recover  her  legacy,  was  sustained. 
Suits  to  recover  distributive  shares :  In  New  Jersey,  and  perhaps  in  some 
other  states,  the  rule  still  prevails  that  a  next  of  kin  may  sue  the  adminis- 
trator in  equity  to  recover  his  distributive  share  of  the  estate,  although  the 
courts  of  law  and  the  orphans'  court  also  have  jurisdiction  if  there  has  been 
a  decree  for  a  distribution  made  in  the  administration;  when  no  decree 
of  distribution  has  yet  been  made,  the  only  remedy  of  the  next  of  kin  is 
by  such  suit  in  equity:  Dorsheimer  v.  Rorback,  23  N.  J.  Eq.  46;  Frey  y. 
Demarest,  16  N.  J.  Eq.  236,  238. 


§  354  EQUITY    JURISPRUDENCE.  654 

of  the  equitable  jurisdiction  as  compared  with  that  of  the 
English  court  of  chancery.  The  only  question  which  now 
remains  for  consideration  is, — assuming  that  either  a  full 
or  a  limited  equitable  jurisdiction  had  been  conferred  by 
the  constitution  or  the  statutes  upon  the  courts  of  any  state 
belonging  to  this  class, — what  is  the  effect  produced  upon 
the  nature,  extent,  and  exercise  of  such  jurisdiction  by  the 
reformed  procedure,  which  has  abolished  all  distinctions 
between  actions  at  law  and  suits  in  equity,  and  which  pro- 
vides that  all  rights,  legal  and  equitable,  shall  be  main- 
tained, and  all  remedies,  legal  and  equitable,  shall  be 
obtained,  by  means  of  the  one  civil  action?  It  would  be 
impossible,  and  indeed  wholly  unnecessary,  for  me  to  follow 
the  course  of  judicial  discussion  and  decision  upon  this 
question  in  each  individual  state;  all  that  I  can  do  is  to 
formulate,  in  as  brief  and  comprehensive  terms  as  possible, 
the  conclusions  which  have  been  reached  by  the  courts  in 
all  the  states  of  this  class. 

§  354.  Its  General  Effect  on  the  Jurisdiction. — ^When- 
ever the  judges  of  any  state  have  dealt  with  this  subject 
generally,  whenever  they  have  in  general  terms  described 
the  total  effect  of  the  reformed  procedure  upon  the  equity 
jurisprudence  and  jurisdiction,  they  have  all  used  language 
of  the  same  import  and  leading  to  the  same  result.  From 
this  entire  course  of  judicial  decision  and  dicta  in  all  the 
states,  the  following  proposition  may  be  formulated  as 
expressing  the  unanimous  conclusion  of  the  courts  with 
respect  to  the  general  effect  of  the  reformed  procedure. 
The  reformed  procedure,  in  its  abolition  of  all  distinction 
between  actions  at  law  and  suits  in  equity;  in  its  abrogation 
of  the  common-law  forms  of  action,  and  its  institution  of 
one  "civil  action"  for  all  remedial  purposes;  in  its  allow- 
ing both  legal  and  equitable  rights  to  be  maintained,  and 
legal  and  equitable  remedies  to  be  conferred  in  combination 
by  the  single  "civil  action";  and  in  the  uniform  rules  which 
it  has  established  for  the  regulation  of  this  civil  action 


655  JUDICIAL    INTERPRETATION    OF    JURISDICTION.  §  354 

whenever  and  for  whatever  purposes  it  may  be  used, — pur- 
ports to  deal  with,  and  does  in  fact  deal  with,  the  procedure 
alone,  with  the  mere  instrumentalities,  modes,  and  external 
forms  by  which  justice  is  administered,  rights  are  pro- 
tected, and  remedies  are  conferred.  The  new  system  was 
not  intended  to  affect,  and  does  not  affect,  the  differences 
which  have  heretofore  existed,  and  still  exist,  between  the 
separate  departments  of  "law"  and  ''equity";  it  was  not 
intended  to  affect,  and  does  not  affect,  the  settled  prin- 
ciples, doctrines,  and  rules  of  equity  jurisprudence  and 
equity  jurisdiction.  To  sum  up  this  result  in  one  brief 
statement,  all  equitable  estates,  interests,  and  primary 
rights,  and  all  the  principles,  doctrines,  and  rules  of  the 
equity  jurisprudence  by  which  they  are  defined,  determined, 
and  regulated,  remain  absolutely  untouched,  in  their  full 
force  and  extent,  as  much  as  though  a  separate  court  of 
chancery  were  still  preserved.  In  like  manner  all  equitable 
remedies  and  remedial  rights, — that  is,  the  equitable  causes 
of  action,  and  the  rights  to  obtain  the  reliefs  appropriate 
therefor, — and  the  doctrines  and  rules  of  equity  jurispru- 
dence which  define  and  determine  these  remedies  and  reme- 
dial rights,  and  the  doctrines  and  rules  of  equity  jurisdic- 
tion which  govern  and  regulate,  not  the  mere  mode  of 
obtaining  them,  but  the  fact  of  obtaining  such  remedies, 
also  remain  wholly  unchanged,  and  still  control  the  action 
of  courts  in  the  administration  of  justice.  While  the  ex- 
ternal distinctions  of  form  between  suits  in  equity  and 
actions  at  law  have  been  abrogated,  the  essential  distinc- 
tions which  inhere  in  the  very  nature  of  equitable  and 
legal  primary  or  remedial  rights  still  exist  as  clearly  de- 
fined as  before  the  system  was  adopted,  and  must  continue 
to  exist  until  t'he  peculiar  features  of  the  common  law  are 
destroyed,  and  the  entire  municipal  jurisprudence  of  the 
state  is  transformed  into  equity.  If,  therefore,  the  facts 
stated  in  the  pleadings  show  that  the  primary  rights,  the 
cause  of  action,  and  the  remedy  to  be  obtained  are  legal, 
then  the  action  is  one  at  law,  and  falls  within  the  jurisdic- 


§  354  EQUITY    JURISPRUDENCE.  656 

tion  at  law.^'  If,  on  the  other  hand,  the  facts  stated  show 
that  the  primary  rights,  or  the  cause  of  action,  or  the 
remedy  to  be  obtained  are  equitable,  then  the  action  itself 
is  equitable,  governed  by  doctrines  of  the  equity  juris- 
prudence, and  falling  within  the  equitable  jurisdiction  of 
the  court.  It  should  be  carefully  observed,  however,  that, 
under  the  reformed  system  of  procedure,  the  same  action 
may  be  both  legal  and  equitable  in  its  nature,  since  it  may 
combine  both  legal  and  equitable  primary  rights,  causes  of 
action,  defenses,  and  remedies.  It  is  this  fact  which,  more 
than  any  other,  has  tended  to  produce  whatever  confusion 
may  have  arisen  in  the  actual  workings  of  the  new  system. 
I  have  collected  and  arranged  in  the  foot-note  cases  selected 
from  the  decisions  of  various  states,  by  which  the  foregoing 
general  conclusions  are  fully  sustained.^ 

§  354,  1  My  limits  of  space  will  not  permit  of  much  extended  citation 
from  judicial  opinions,  and  I  shall  only  quote  a  few  passages  which  state 
the  doctrines  upon  which  the  conclusions  of  the  text  are  founded  in  a 
peculiarly  clear  and  forcible  manner.  I  have  collected  these  cases  accord- 
ing to  the  states,  arranged  in  alphabetical  order. 

Arkansas.— Talhot  v.  Wilkins,  31  Ark.  411,  422;  Gantt's  Dig.,  §§  4461, 
4463,  4464. 

California.— De  Witt  v.  Hays,  2  Cal.  463,  468,  56  Am.  Dec.  352,  per 
Murray,  C.  J.;  Smith  v.  Rowe,  4  Cal.  6;  Grain  v.  Aldrich,  38  Cal.  514,  99 
Am.  Dec.  423;  Wiggins  v.  McDonald,  18  Cal.  126;  Bowen  v.  Aubrey,  22 
Cal.  566,  569 ;  White  v.  Lyons,  42  Cal.  279,  282.  In  two  of  these  cases  the 
whole  theory,  both  in  its  positive  and  its  negative  aspects,  was  stated  in  so 
clear  a  manner  that  I  may  be  permitted  to  make  short  extracts  from  the 
opinions,  especially  as  other  cases  have,  from  necessity,  only  repeated  the 
same  conclusions.  In  De  Witt  v.  Hays,  2  Cal.  463,  468,  56  Am.  Dec.  352, 
Mr.  C.  J.  Murray  said :  "The  legislature,  in  providing  that  'there  shall  be 
but  one  form  of  civil  action/  cannot  be  supposed  to  have  intended  at  one 
fell  stroke  to  abolish  all  distinction  between  law  and  equity  as  to  actions. 
Such  a  construction  would  lead  to  infinite  perplexities  and  endless  diffi- 
culties. ...  So  cases  legal  and  equitable  have  not  been  consolidated;  and 
though  there  is  no  difference  between  the  form  of  a  bill  in  chancery  and  a 
common-law  declaration  under  our  system,  where  all  relief  is  sought  in  the 

§  354,  (a)  The  text  is  quoted  in  ing  that  an  action  to  enforce  the  stat- 
Myers  v.  Sierra  Val.  Stock  &  Agric.  utory  right  of  contribution  among 
Assn.,  122  Cal,  669,  55  Pac.  689,  hold-       stockholders  is  at  law. 


C57  JUDICIAL   INTERPRETATION    OF    JURISDICTION.  §  355 

§  355.  Its  Particular  Effects. — While  this  iinanimons 
conclusion  of  the  courts  is,  in  general,  correct;  while,  when 
we  look  at  the  effects  of  the  reformed  procedure  as  a 
whole, — en  masse, — it  is  true  that  equity  and  the  law  remain 

same  way  from  the  said  tribunal,  the  distinction  between  law  and  equity  is 
as  naked  and  broad  as  ever.  To  entitle  the  plaintiff  to  the  equitable  inter- 
position of  the  court,  he  must  show  a  proper  case  for  the  interference  of  a 
court  of  chancei-y,  and  one  in  which  he  has  no  adequate  or  complete  relief 
at  law."  In  White  v.  Lyons,  42  Cal.  279,  282,  Mr.  Justice  Crockett  said : 
"Under  the  code  there  is  but  one  form  of  action  in  this  state.  ...  If  the 
facts  stated  are  such  as  addi'ess  themselves  to  the  equity  side  of  the  court, 
the  appropi'iate  relief  will  be  granted  by  the  court  sitting  as  a  court  of 
equity.  On  the  other  hand,  if  the  facts  alleged  are  purely  cognizable  in  a 
court  of  law,  the  proper  relief  will  be  administered  in  that  form  of 
proceeding." 

Indiana.— Matlock  v.  Todd,  25  Ind.  128,  130,  per  Elliott,  J. ;  Woodford 
V.  Leavenworth,  14  Ind.  311,  314,  per  Worden,  J.;  Emmons  v.  Kiger,  23 
Ind.  483,  487;  Troost  v.  Davis,  31  Ind.  34,  39;  Scott  v.  Crawford,  12  Ind. 
411. 

Iowa. — Claussen  v.  Lafrenz,  4  G.  Greene,  224,  225-227;  Kramer  v.  Reb- 
man,  9  Iowa,  114;  Laird  v.  Dickerson,  40  Iowa,  665,  669;  Sherwood  v. 
Sherwood,  44  Iowa,  192. 

Kansas. — Shoemaker  v.  Brown,  10  Kan.  383,  390;  Sattig  v.  Small,  1 
Kan.  170,  175. 

Kentucky.— Garret  v.  Gault,  13  B.  Mon.  378,  380;  Martin  v.  Mobile  & 
O.  R.  R.,  7  Bush,  116,  124;  Richmond,  etc.,  T.  Co.  v.  Rogers,  7  Bush,  532, 
535 ;  Hord  v.  Chandler,  13  B.  Mon.  403 ;  Hill  v.  Barrett,  14  B.  Mon.  67. 

Minnesota. — Gates  v.  Smith,  2  Minn.  30,  32;  Guernsey  v.  Am.  Ins.  Co., 
17  Minn.  104,  108 ;  Montgomery  v.  McEwen,  7  Minn.  351. 

Missouri. — Henderson  v.  Dickey,  50  Mo.  161,  165;  Lackland  v,  Garesche, 
56  Mo.  267,  270;  Magwire  v.  Tyler,  47  Mo.  115,  128;  Meyers  v.  Field,  37 
Mo.  434,  441 ;  Richardson  v.  Means,  22  Mo.  495,  498 ;  ]\Iaguire  v.  Vice,  20 
Mo.  429 ;  Rogers  v.  Penniston,  16  Mo.  432 ;  and  see  also  Curd  v.  Lackland, 
43  Mo.  139 ;  Wynn  v.  Cory,  43  Mo.  301 ;  Gray  v.  Payne,  43  Mo.  203 ;  Bobb 
V.  Woodward,  42  Mo.  482,  487 ;  Peyton  v.  Rose,  41  Mo.  257,  262 ;  Gott  v. 
Powell,  41  Mo.  416;  Reed  v.  Robertson,  45  Mo.  580;  Rutherford  v.  Will- 
iams, 42  Mo.  18,  23 ;  Fithian  v.  Monks,  43  Mo.  502,  517. 

Nebraska. — Wilcox  v.  Saunders,  4  Neb.  569,  587. 

Nevada. — Crosier  v.  McLaughlin,  1  Nev.  348;  Champion  v.  Sessions,  1 
Nev.  478;  Shennan  v.  Clark,  4  Nev.  138,  97  Am.  Dec.  516;  Conley  v. 
Chedic,  6  Nev.  222. 
1—42 


§  355  EQUITY    JURISPRUDENCE.  658 

unchanged, — still,  this  proposition  is  not  true  in  every  par- 
ticular; there  are  some  important  and  necessary  limita- 
tions. When  we  descend  from  such  a  general  survey  of  the 
entire  domain,  and  make  a  close  inspection  of  each  portion 

New  YorA;.— Reubens  v.  Joel,  13  N.  Y.  488,  493,  per  S.  L.  Selden,  J.; 
Voorhis  V.  Child's  Ex'rs,  17  N.  Y.  354,  357-362,  per  S.  L.  Selden,  J.; 
Peck  V.  Newton,  46  Barb.  173,  174;  Cole  v.  Reynolds,  18  N.  Y.  74,  76; 
Lattin  v.  MeCarty,  41  N.  Y.  107, 110,  per  Hunt,  C.  J.;  Cropsey  v.  Sweeney, 
27  Barb.  310;  Dobson  v.  Pearce,  12  N.  Y.  156,  165,  62  Am.  Dec.  152; 
Crary  v.  Goodman,  12  N.  Y.  266,  268,  64  Am.  Dec.  506;  N.  Y.  Cent.  Ins. 
Co.  V.  Nat.  Protect.  Ins.  Co.,  14  N.  Y.  85,  90;  Bidwell  v.  Astor  Ins.  Co., 
16  N.  Y.  263,  267;  Phillips  v.  Gorham,  17  N.  Y.  270,  273,  275;  Laub  v. 
Buckmiller,  17  N.  Y.  620,  626;  N.  Y.  Ice  Co.  v.  Northwest  Ins.  Co.,  23 
N.  Y.  357,  359,  360;  Brown  v.  Brown,  4  Rob.  (N.  Y.)  688,  701;  Grinnell 
V.  Buchanan,  1  Daly,  538;  Ireland  v.  Nichols,  1  Sweeny,  208;  Wright  v. 
Wright,  54  N.  Y.  437,  442;  Giles  v.  Lyon,  4  N.  Y.  600;  Anderson  v. 
Hunn,  5  Hun,  79 ;  Barlow  v.  Scott,  24  N.  Y.  40,  45 ;  De  Hart  v.  Hatch, 
3  Hun,  375,  380;  Wilcox  v.  Wilcox,  14  N.  Y.  575,  579,  581.  In  the  first 
two  cases  above  cited  (Reubens  v.  Joel,  13  N.  Y.  488;  Voorhis  v.  Child's 
Ex'rs,  17  N.  Y.  354),  Mr.  Justice  S.  L.  Selden  undoubtedly  carried  this 
principle  of  interpreting  the  codes  of  procedure  altogether  too  far.  By 
his  theory  not  only  the  inherent  distinctions  between  law  and  equity  are 
retained,  but  all  the  differences  of  external  form  between  suits  in  equity 
and  actions  at  law,  and  even  among  the  various  kinds  of  legal  actions,  are 
substantially  preserved.  While  his  views  on  this  point  have  been  rejected 
by  all  the  authoritative  decisions,  his  statement  of  the  effect  of  the  new 
system  upon  what  is  essential  and  inherent  in  the  equity  jurisprudence 
and  jurisdiction  is  both  accixrate  and  admirable.  From  this  long  list  of 
New  York  decisions  I  will  make  one  or  two  short  quotations.  Lattin  v. 
McCarty,  41  N.  Y.  107,  is  a  very  leading  and  authoritative  case,  because 
its  facts  presented  the  question  in  the  most  direct  manner.  Mr.  C.  J. 
Hunt  said  (p.  109)  :  "Assuming  that  the  complaint  does  contain  two 
causes  of  action,  as  is  insisted,  the  judgment  was  still  erroneous.  The 
argument  principally  relied  upon  to  sustain  the  demurrer  is  this,  that  the 
two  causes  of  action  are  of  different  characters,  one  an  action  of  eject- 
ment, being  an  action  at  law,  the  other  an  action  to  set  aside  a  deed  as 
fraudulent,  and  of  an  equitable  nature;  that  the  latter  may  be  tried  by 
the  court,  while  in  the  former  the  party  is  entitled  to  have  his  case  passed 
upon  by  a  jury.  The  eodifiers  labored  assiduously  to  anticipate  and  to 
overrule  this  objection."  He  cites  certain  sections  of  the  code,  and  pro- 
ceeds :  "In  these  provisions  and  in  others,  the  distinction  between  legal  and 
equitable  causes  of  action  is  recognized.     There  is  no  attempt  to  abolish 


659  JUDICIAL   INTERPEETATION    OF    JURISDICTION.  §  355 

in  detail,  we  shall  find  that  some  modifications  have  been 
made  in  the  body  of  equity  jurisprudence.  This  result  was 
in  fact  inevitable.  Certain  equitable  interests  and  primary 
rights,  and  certain  equitable  remedies  and  remedial  rights, 

this  distinction,  which  would  be  quite  unavailing.  The  attempt  is  to 
abolish  the  distinction  between  the  forms  of  action  and  the  modes  of  pro- 
ceeding in  the  several  cases.  The  difficulty  under  consideration  has  been 
expressly  overruled  by  this  court  in  the  eases  that  I  shall  presently  cite." 
He  cites  several  cases,  all  of  which  are  placed  in  the  above  list.  The  case 
of  Wright  V.  Wright,  54  N.  Y.  437,  is  also  a  very  instructive  one.  The 
action  was  by  a  wife  against  her  husband  upon  a  promissory  note  given 
by  him  to  her  before  the  marriage,  and  in  contemplation  thereof.  The 
complaint  was  in  the  usual  form  of  an  action  on  a  note,  but  stating  the 
relation  between  the  parties,  and  how  the  note  was  given.  Reynolds,  J., 
said  (p.  442)  :  "While  it  is  admitted  that  the  rights  of  the  plaintiff  could 
be  enforced  by  a  suit  in  equity,  yet  it  is  insisted  that  this,  being  an  action 
at  law,  cannot  be  maintained  by  a  married  woman  against  her  husband. 
It  might  be  asked  hy  what  authority  the  defendant  names  this  an  action 
at  law.  What  additional  allegation  in  the  complaint  would  have  enabled 
the  defendant  to  designate  it  as  a  suit  in  equity?  While  regard  is  still  to 
be  had  in  the  application  of  legal  and  equitable  principles,  there  is  not 
of  necessity  any  difference  in  the  mere  form  of  procedure  so  far  as  the 
case  to  be  stated  in  the  complaint  is  concerned.  All  that  is  needful  is  to 
state  the  facts  sufficient  to  show  that  the  plaintiff  is  entitled  to  the  relief 
demanded;  and  it  is  the  duty  of  the  court  to  afford  the  relief  without 
stopping  to  speculate  upon  the  name  to  be  given  to  the  action.  These  prin- 
ciples have  been  frequently  acted  upon  by  the  court.  .  .  .  When,  as  in 
our  system,  a  single  court  has  jurisdiction  both  in  law  and  in  equity,  and 
administers  ji;stice  in  a  common  form  of  procedure,  the  two  jurisdictions 
of  necessity  became  to  some  extent  blended.  This  must  be  especially  the 
result  when  the  forms  of  pleading  and  proceeding  are  alike."  I  know 
of  no  opinion  which  more  accurately  and  completely  expresses  the  true 
intent  and  effects  of  the  reformed  procedure  than  this.  In  Wilcox  v. 
Wilcox,  14  N.  Y.  575,  579,  581,  it  was  decided  that  individual  judges  act- 
ing in  chambers  have  all  the  powers  and  functions  which  were  possessed 
and  exercised  by  the  chancellor  in  chambers. 

Ohio— lUonne  v.  Bradstreet,  7  Ohio  St.  322,  325;  Lamson  v.  Pfaff,  1 
Handy,  449,  452;  McCrory  v.  Parks,  18  Ohio  St.  1;  Ellithorpe  v.  Bucks,  17 
Ohio  St.  72;  Clayton  v.  Freet,  10  Ohio  St.  544,  546;  Goble  v.  Howard,  12 
Ohio  St.  165,  168 ;  Hager  v.  Reed,  11  Ohio  St.  626,  635 ;  Dixon  v.  Caldwell, 
15  Ohio  St.  412,  415,  86  Am.  Dec.  487.  In  the  last-named  case,  the  court 
held  that  the  code  had  abolished  the  distinction  between  actions  at  law 
and  suits  in  equity,  and  had  substituted  in  their  place  one  form  of  "civil 


§  355  EQUITY   JURISPRUDENCE.  660 

were  so  essentially  bound  up  with  and  dependent  upon  the 
forms  peculiar  to  the  suit  in  equity,  and  to  the  administra- 
jtion  of  justice  by  the  methods  of  chancery,  that  any  aboli- 
tion of  the  peculiar  forms  must  of  necessity  work  some 

action";  but  the  rights  and  liabilities  of  parties,  both  legal  and  equitable, 
as  distinguished  from  the  mode  of  procedure,  remain  the  same  since  as 
before  the  adoption  of  the  code. 

Oregon. — Hatcher  v.  Briggs,  6  Or.  31,  41. 

Wisconsin, — Bonesteel  v.  Bonesteel,  28  Wis.  245,  250;  Dickson  v.  Cole, 
34  Wis.  621,  625 ;  Mowiy  v.  Hill,  11  Wis.  146,  149 ;  Leonard  v.  Rogan,  20 
Wis.  568;  Supervisors  v.  Decker,  30  Wis.  624,  626-630;  Turner  v.  Pierce, 
34  Wis.  658,  665;  Lawe  v.  Hyde,  39  Wis.  345;  Noonan  v.  Orton,  21  Wis. 
283 ;  Horn  v.  Ludington,  32  Wis.  73.  From  these  and  other  eases  which 
might  be  cited,  it  is  plain  that  the  supreme  court  of  Wisconsin,  while  main- 
taining the  doctrine  that  law  and  equity  are  unaffected  by  the  reformed 
procedure,  has  also  preserved  in  actual  practice  more  of  the  external  dis- 
tinctions of  form  between  equitable  suits  and  legal  actions  than  has  been 
done  by  the  courts  of  any  other  state  where  the  new  system  of  procedure 
is  adopted. 

There  are  two  other  states  in  which  law  and  equity  are  blended,  an^  are 
administered  by  means  of  the  same  kind  of  action,  with  the  same  forms  of 
pleading  and  rules  of  practice,  although  the  peculiar  system  known  as  the 
"refoi-med  procedure"  does  not  prevail  therein.  These  states  are  Louisiana 
and  Texas,  and  they  should  properly  be  included  in  this  fourth  class. 

Louisiana. — The  "equity"  recognized  in  this  state  is  the  power  of  the 
court  to  decide  according  to  natural  justice  in  all  cases  where  the  positive 
law  is  silent.  See  remarks,  ante,  §  345,  in  note ;  Welch  v.  Thorn,  16  La. 
188,  196;  Kittridge  v.  Breaud,  4  Rob.  (La.)  79,  80,  39  Am.  Dec.  512; 
Clarke  v.  Peak,  15  La.  Ann.  407,  409. 

Texas.— Ogden  v.  Slade,  1  Tex.  13,  15;  Smith  v.  Clopton,  4  Tex.  109, 
113;  Spann  v.  Stern's  Adm'rs,  18  Tex.  556;  Seguin  v.  Maverick,  24  Tex. 
526,  532,  76  Am.  Dec.  117;  Herrington  v.  Williams,  31  Tex.  448,  460; 
Jones  V.  McMahan,  30  Tex.  719,  728;  Newson  v.  Chrisman,  9  Tex.  113, 
117;  Smith  v.  Smith,  11  Tex.  102,  106;  Gross  v.  McClaran,  8  Tex.  341, 
344;  Coles  v.  Kelsey,  2  Tex.  541,  553,  47  Am.  Dec.  661;  Carter  v.  Carter, 
5  Tex.  93,  100;  Wells  v.  Barnett,  7  Tex.  584,  586;  Pui-vis  v.  Sherrod,  12 
Tex.  140,  159.  The  peculiar  system  of  administering  justice,  with  respect 
to  the  distinctions  between  law  and  equity  which  prevails  in  Texas,  can 
only  be  fully  understood  by  an  examination  of  these  decisions.  I  add  a 
single  quotation  from  an  early  case.  In  Smith  v.  Clopton,  4  Tex.  109,  113, 
Hemphill,  C.  J.,  said:  "Before  the  introduction  of  the  common  law,  the 
distinction  between  law  and  equity  was  altogether  unknown.  The  parties 
stated  their  causes  of  complaint  and  grounds  of  defense,  and  on  the  alle- 


661  JUDICIAL   INTERPRETATION    OF    JURISDICTION.  §  356 

change  in  this  class  of  interests,  rights,  and  remedies.  It 
is  easy  to  say  that  the  distinctive  modes  of  equity  proce- 
dure are  alone  abrogated  by  the  legislature,  while  the  prin- 
ciples, doctrines,  and  rules  of  the  equity  jurisprudence  and 
jurisdiction  are  wholly  unaffected;  but  in  the  very  nature 
of  things  this  is  simply  impossible  with  respect  to  all  the 
details  of  the  system.  Some  particular  changes  in  equity 
jurisprudence  and  jurisdiction  have  therefore  been  made; 
they  have  been  distinctly  recognized  and  unqualifiedly  ad- 
mitted by  the  courts;  but  their  necessary  connection  with 
the  general  effects  produced  by  the  reformed  procedure  has 
not  always  been  clearly  perceived  and  announced,  I  shall 
describe  the  most  important  of  these  instances,  which  must 
be  regarded  as  exceptions  to  or  limitations  upon  the  general 
propositions  contained  in  the  last  preceding  paragraph. 

§356.  On  Certain  Equitable  Interests. — The  first  and 
most  palpable  of  these  necessary  changes  is  the  complete 
abrogation  of  a  certain  class  of  equitable  primary  rights, 

gations  and  proofs  such  relief  was  afforded  as  they  were  entitled  to  under 
any  and  all  the  laws  of  the  land,  without  reference  to  that  peculiarity 
of  the  English  system  of  jurisprudence  which  renders  the  rights  of  parties, 
or  at  least  their  reliefs,  dependent  not  only  upon  the  facts  of  their  case, 
but  also  upon  the  form  in  which  redress  was  sought.  Upon  the  intro- 
duction of  the  common  law,  the  intention  of  the  legislature  is  manifest 
to  prevent  such  distinction  from  being  recognized,  at  least,  to  an  extent 
which  would  deprive  parties  of  any  relief  to  which  they  may  be  entitled 
under  the  rules  and  principles  of  either  law  or  equity.  By  the  constitution 
of  the  state,  and  by  subsequent  legislation,  the  distinction  between  these 
two  systems  is,  in  a  great  measure,  if  not  totally,  disregarded.  .  .  .  The 
only  inquiry,  then,  to  be  made  at  the  institution  of  a  suit  is,  whether  the 
facts  of  the  case  are  such  as  to  entitle  a  party  to  a  judgment  in  his  favor 
in  either  law  or  equity;  and  if  he  have  rights  cognizable  by  either,  such 
relief  will  be  adjudged  by  the  court  as  the  nature  of  the  case  demands. 
The  rule  that  courts  of  equity  will  interfere  only  where  the  party  is 
remediless  at  law  has  but  little  application  under  a  system  in  which  the 
litigants  in  a  suit  can  demand  and  obtain  all  the  relief  which  can  be 
granted  by  either  courts  of  law  or  of  equity."  See.  also,  the  opinion  in 
Coles  V.  Kelsey,  2  Tex.  541,  553,  47  Am.  Dec.  661,  and  the  remarks  ante, 
in  note  under  §  345. 


§  356  EQUITY    JURISPRUDENCE.  662 

and  the  transformation  of  them  into  strictly  legal  rights. 
This  result  may  not,  under  the  circumstances,  be  of  much 
practical  importance,  but  it  certainly  exists.  Prior  to  the 
codes,  the  assignment  of  a  thing  in  action  conferred  upon 
the  assignee  only  an  equitable  primary  right,  an  equital)le 
demand.  It  is  true  that  the  courts  of  law  had,  in  the  course 
of  time,  come  to  recognize  and  protect  this  right,  by  permit- 
ting the  assignee  to  sue  at  law  in  the  name  of  his  assignor, 
to  control  the  action  and  judgment,  and  to  receive  the  pro- 
ceeds; but  still  the  7~ight  was  no  less  equitable;  the  assignee 
could  not  assert  his  own  claim  by  an  action  at  law  brought 
in  his  own  name.  In  all  the  states  where  it  prevails,  the 
reformed  procedure  not  only  permits  but  requires  the  as- 
signee of  a  thing  in  action  to  sue  upon  it  in  his  own  name 
in  any  legal  action  brought  for  its  recovery.  This  statu- 
tory rule  removes  the  last  vestige  of  the  equitable  nature 
of  the  assignee's  interest,  and  transforms  his  claim  into  a 
purely  legal  one,  and  thus  at  one  blow  abolishes  a  well- 
defined  division  or  portion  of  the  equity  jurisprudence.^ 
The  courts  have  recognized  this  effect  of  the  legislation 

§  356,  1  It  is  idle  to  say,  as  has  been  said  by  some  judges,  that  the  codes- 
merely  adopt  a  rule  of  practice  and  extend  to  legal  actions  the  rule  as  to 
parties  which  had  prevailed  in  courts  of  equity,  and  that  the  right  of  the 
assignee  given  by  the  codes  is  only  an  equitable  one  (as,  for  example,  in 
McDonald  v.  Kneeland,  5  Minn.  352,  365),  because, — 1.  The  assignment  of 
a  thing  in  action  conferred  a  complete  equitable  interest  upon  the  assignee 
prior  to  the  codes,  so  that  the  provision  of  the  codes  does  not  create  his 
equitable  right;  and  2.  The  doctrine  of  equity  was  not  a  mere  rule  regulat- 
ing the  parties  to  a  suit;  it  treated  the  assignee  as  equitable  owner,  as 
clothed  with  all  the  rights  of  his  assignor,  and  therefore  permitted  him  to 
sue  in  his  own  name;  but  3.  The  sole  remaining  reason  why  the  assignee 
did  not  obtain  a  legal  right  of  ownership  was  found  in  the  purely  technical 
rule  which  forbade  him  to  sue  at  law  in  his  own  name.  When  this  arbi- 
trary rule  was  abolished,  his  right  of  necessity  became  a  legal  one.  The 
origin  of  the  rule  at  law  is  found  in  the  ancient  common-law  doctrines  con- 
cerning maintenance;  but  these  had  long  ceased  to  be  operative  in  the 
United  States.  The  true  effect  of  the  reformed  procedure  was  perceived 
and  stated  by  that  most  able  and  learned  judge  Mr.  Justice  Denio,  in 
Peterson  v.  Chemical  Bank,  32  N.  Y.  21,  45,  88  Am.  Dec.  298 :  "The  law 
of  maintenance  .  .  .  prohibited  the  transfer  of  the  legal  property  in  a 


663  JUDICIAL    INTERPRETATION    OF    JURISDICTION.  §  357 

in  changing  the  assignee's  right  from  an  equitable  into  a 
legal  one;  but  they  have  not  perceived,  or  at  least  x)ointed 
out,  its  bearing  upon  the  general  mode  of  describing  the 
results  produced  by  the  new  system.  It  is  hardly  neces- 
sary to  say  that  this  effect  is  confined  to  direct  assignments 
of  legal  things  in  action.  The  equitable  results  arising 
from  the  assignment  of  equitable  demands,  and  from  the 
equitable  assignment  of  funds,  and  the  like  are,  of  course, 
unmodified. 

§  357.  On  Certain  Equitable  Remedies. — But  there  is  an- 
other and  still  more  important  limitation  of  the  general 
proposition.  While  it  is  undoubtedly  true  that  with  the 
exception  just  mentioned  of  the  right  conferred  upon  the 
direct  assignee  of  a  legal  thing  in  action,  all  the  equi- 
table estates,  interests,  property,  liens,  and  other  primary 
rights  1  recognized  by  the  equity  jurisprudence,  and  all  the 

cJiose  in  action,  so  as  to  give  the  assignee  a  right  of  action  in  his  own 
name.  But  this  is  now  abrogated;  and  such  a  demand  .  .  .  may  be  sold 
and  conveyed,  so  as  to  vest  in  the  purchaser  all  the  legal  as  well  as  the 
equitable  rights  of   the   original   creditor."  * 

§  357^  1  It  might  perhaps  be  said  that  the  case  of  one  of  two  or  more 
joint  debtors  dying,  and  the  equitable  claim  of  a  creditor  against  the  estate 
of  such  decedent,  was  also  an  exception.  At  the  common  law  no  indebted- 
ness exists  against  the  estate  of  a  deceased  joint  debtor;  but  in  equity  the 
creditor  has  a  demand  still  continuing  which  he  can  enforce  by  an  equitable 
suit,  under  certain  restrictions.  In  several  of  the  states  the  creditor  is 
permitted  to  sue  the  representatives  of  the  deceased  debtor  at  law,  either 
alone  or  jointly  with  the  survivors,  and  without  having  exhausted  his 
remedies,  or  even  taken  any  steps  against  the  survivors.  In  short,  the 
ancient  common-law  doctrine  is  wholly  abrogated,  and  the  demand  against 
the  estate  of  the  deceased  joint  debtor  is  transformed  into  an  ordinaiy 
legal  claim ;  the  original  legal  debt  is  unaffected  by  the  death.  Great  as  is 
this  change,  I  do  not  include  it  among  those  described  in  the  text,  because 
it  is  not  a  part  of  the  reformed  procedure  as  an  entire  system.  This  par- 
ticular result  is  confined  to  a  few  of  the  states,  and  depends  upon  peculiar 
and  express  causes  of  their  own  codes.  In  the  states  where  such  legisla- 
tion  has   been   adopted,   the   effect   undoubtedly   is   a   change,   as   above 

§356,  (a)  The  text  is  cited  and  Gravel  Co.,  156  Mo.  App.  411,  138 
adopted     in     aose     v.     Independent      S.  W.  81.     See,  also,  §  1273. 


§  357  EQUITY    JURISPRUDENCE.  '    664 

principles,  doctrines,  and  rules  of  that  jurisprudence  which 
define  them,  determine  their  existence,  and  regulate  their 
acquisition,  transfer,  and  enjoyment,  are  untouched  and 
unaffected,  it  is  no  less  true  that  some  of  the  equitable 
remedies  and  remedial  rights  belonging  to  the  equity  juris- 
prudence, and  coming  within  the  equity  jurisdiction,  are 
materially  modified,  if  not  indeed  destroyed  as  equitable 
remedies  and  remedial  rights,  by  the  reformed  procedure. 
The  union  of  legal  and  equitable  causes  of  action  in  the 
same  suit,  and  the  granting  of  legal  and  equitable  reliefs 
by  the  same  judgment,  and  above  all,  the  granting  of  ulti- 
mate legal  relief  by  the  judgment  as  though  some  prior 
auxiliary  equitable  relief  which  was  a  necessary  prerequi- 
site had  actually  been  granted,  have  very  much  lessened 
the  instances  in  which  it  is  proper,  or  even  possible,  for  a 
party  to  maintain  distinctively  equitable  suits,  enforce 
purely  equitable  remedial  rights,  and  obtain  strictly  equi- 
table remedies  according  to  the  settled  course  of  the  equi- 
table jurisdiction.2  The  same  consequences  must  result  in 
even  a  still  more  marked  manner,  from  the  setting  up  of 
equitable  defenses  and  counterclaims,  and  the  obtaining 
affirmative  equitable  relief  against  the  plaintiffs  in  actions 
which  at  their  inception  are  purely  legal.  While  these  pro- 
visions of  the  new  system  do  not  absolutely  take  away  the 
jurisdiction  to  entertain  suits  for  the  enforcement  of  equi- 
table rights,  and,  in  connection  therewith,  for  the  restrain- 
ing of  pending  or  threatened  actions  at  law,  yet  they  cer- 

described,  in  equitable  primary  rights,  by  transforming  them  into  strictly 
legal  rights. 

§  357,  2  One  example  will  sufficiently  illustrate  this  point.  A  plaintiff 
sues  upon  a  written  agreement,  setting  forth  the  facts  entitling  him  to  a 
reformation,  and  seeking  to  recover  the  amount  due  upon  the  instrument 
as  reformed.  The  judgment  actually  rendered  is  merely  a  legal  judgment 
for  the  recovery  of  debt  or  damages,  the  equitable  relief  of  a  reformation 
not  being  actually  decreed,  but  being  assumed;  the  purely  legal  relief  is 
awarded  exactly  as  though  the  prior  auxiliary  equitable  relief  had  been  in 
terms  granted.  See  Bidwell  v.  Astor  Ins.  Co.,  16  N.  Y.  263,  267;  Phillips 
V.  Gorham,  17  N.  Y.  270 ;  Caswell  v.  West,  3  Thomp.  &  C.  383. 


665  JUDICIAL   INTERPRETATION    OF    JURISDICTION.  §  358 

tainly  modify  that  jurisdiction,  and  in  a  great  number  of 
instances  render  its  exercise  unnecessary,  improper,  and 
even  impossible.^ 

§  358.  On  the  Inadequacy  of  Legal  Remedies. — Finally, 
if  the  true  spirit  and  intent  of  the  refoniied  procedure  were 
fully  carried  out  by  the  courts,  I  think  that  in  all  the  states 
where  it  prevails  the  question  whether  or  not  an  adequate 
remedy  can  be  obtained  at  law  would  cease  to  have  the 
slightest  importance  in  the  actual  decision  of  causes.  One 
of  the  plainest  purposes  of  the  new  system  is,  that  if  a 
cause  of  action  is  stated  in  the  pleading,  the  relief  to  which 
the  plaintiff  is  entitled  should  be  granted,  whether  that 
relief  be  legal  or  equitable.  A  suit  should  never  be  dis- 
missed on  the  ground  that  a  court  of  equity  has  no  juris- 
diction of  the  matter  because  the  plaintiff  has  an  adequate 
remedy  at  law;  it  should  be  retained  and  decided  as  an 
action  at  law,  and  the  adequate  legal  relief  should  be 
awarded. 1  *  The  correctness  of  this  theory  is  generally 
admitted,  but  the  courts  too  often  fail  to  carry  the  theory 
into  practice. 

§  357,  3  I  cannot  at  present  enter  into  any  discussion  of  this  most  im- 
portant question ;  it  will  be  examined  in  a  subsequent  chapter  which  deals 
with  injunction.  It  is  sufficient  now  to  cite  a  few  eases  which  illustrate 
the  subject  mentioned  in  the  text:  Erie  R'y  Co.  v.  Ramsey,  45  N.  Y.  637, 
per  Folger,  J.;  Platto  v.  Deuster,  22  Wis.  482,  per  Dixon,  C.  J.;  Rogers 
V.  Gwinn,  21  Iowa,  58;  Uhlf elder  v.  Levy,  9  Cal.  607;  Anthony  v.  Dunlap, 
8  Cal.  26;  Rickett  v.  Johnson,  8  Cal.  34. 

§  358,  1  Mr.  Chief  Justice  Hemphill  clearly  apprehended  this  necessary 
result  of  the  system  in  Smith  v.  Clopton,  4  Tex.  109,  113,  quoted  above,  in 
the  note  under  §  354. 

§358,  (a)  The  text  is  cited  and  followed  in  Madden  v.  McKenzie,  144 
Fed.  64,  75  C.  C.  A.  222. 


PART  SECOND. 


PART  SECOND. 

THE  MAXIMS  AND  GENERAL  PRINCIPLES 
OF  EQUITY  JURISPRUDENCE,  AND  THE 
EVENTS  WHICH  ARE  OCCASIONS  OF 
EQUITABLE  PRIMARY  OR  REMEDIAL 
RIGHTS. 


PRELIMINARY  SECTION. 

ANALYSIS. 

8  3i59.  Objects,  questions,  and  divisions  stated. 

§  360.  Equitable  principles  described. 

§  361.  Equitable  doctrines  described. 

§  362.  Occasions  of  equitable  rights. 

§359.  Questions  and  Divisions  Stated. — Thus  far  the 
discussion  has  been  confined  to  the  equity  jurisdiction,  or 
the  power  of  courts  to  entertain  and  determine  controver- 
sies involving  equitable  estates,  interests,  and  rights,  or  to 
award  remedies,  in  pursuance  of  the  doctrines,  methods, 
and  procedure  of  equity.  I  now  proceed  to  the  examina- 
tion of  the  doctrines  and  rules  which  make  up  the  equity 
jurisprudence.  In  the  introductory  chapter  it  was  shown 
that  equity  jurisprudence,  considered  as  a  department  of 
the  municipal  law,  as  a  collection  of  practical  rules  adminis- 
tered by  the  courts,  is  separated  by  a  natural  line  of  divi- 
sion into  two  parts,  namely,  equitable  estates,  interests,  and 
primary  rights,  which  are  all  either  equitable  rights  of 
property  or  rights  analogous  to  property,  and  equitable 
remedies  and  remedial  rights.  There  are,  however,  certain 
elements  underlying  and  running  through  the  entire  body 
of  equity  jurisprudence,  which  must  be  explained  and  de- 
scribed in  all  their  fullness  and  force,  before  either  of  these 
two  great  divisions  can  be  dealt  with  in  a  complete  and 
accurate  manner.    As  clearly  appears  in  our  preliminary 

(669) 


§  360  EQUITY    JURISPRUDENCE.  670 

historical  sketch,  the  doctrines  and  rules  of  equity  jurispru- 
dence are  not  arbitrary;  they  are,  to  a  very  great  extent, 
based  upon  and  derived  from  those  essential  truths  of 
morality,  those  unchangeable  principles  of  right  and  obli- 
gation which  have  a  juridical  relation  with  and  application 
to  the  events  and  transactions  of  society.  These  ethical 
truths  do  not,  however,  appear  in  equity  jurisprudence  in 
their  purely  abstract  form.  As  they  must  be  applied  by 
the  courts  to  juridical  relations  alone,  they  have  been  made 
to  assume  a  concrete  and  juridical  character,  without  losing 
at  the  same  time  any  of  their  inherent  ethical  nature.  In 
fact,  these  juridical  precepts  of  right  and  duty  are  the 
broad  foundations  upon  which  the  superstructure  of  equity 
jurisprudence  has  been  constructed;  they  are  the  sources 
from  which  most  of  those  doctrines  and  rules  have  been 
drawn  which  define  and  regulate  equitable  estates,  inter- 
ests, and  rights,  and  control  the  administration  of  equitable 
remedies.  A  careful  examination  and  full  comprehension 
of  these  sources — these  fundamental  principles — are  plainly 
a  prerequisite  to  any  complete  and  accurate  knowledge  and 
understanding  of  the  doctrines  and  rules  which  result  from 
them. 

§360.  Equitable  Principles. — The  juridical  principles  ^ 
of  morality  which  thus  constitute  the  ultimate  sources  of 
equitable  doctrines  and  rules  are  of  two  classes  or  grades. 
Underlying  the  entire  body  of  equity  jurisprudence,  extend- 
ing through  every  one  of  its  departments,  and  shaping  to 
a  greater  or  less  extent  its  doctrines  concerning  almost 
every  important  subject,  are  certain  broad  comprehensive 
precepts  which  are  commonly  denominated  maxims  of 
equity.     These  maxims  are  in  the  strictest  sense  the  priii- 

§  360,  1  It  is  important  to  obtain  an  accurate  notion  of  the  distinction 
between  "principles"  and  doctrines.  "All  principles  are  doctrines,  but  all 
dnr-trines  are  not  principles.  Those  properly  are  principles  which  contain 
the  principia,  the  beginnings  or  starting-points  of  evolution,  out  of  which 
any  system  of  truth  is  developed" :  De  Quincey.  "Rules"  are  still  more 
particular  in  their  application  and  narrow  in  their  scope  than  doctrines. 


671  .  PRELIMINARY    SECTION".  §  361 

cipia,  the  beginnings  out  of  which  has  been  developed  the 
entire  system  of  truth  known  as  equity  jurisprudence.^ 
They  are  not  the  practical  and  final  doctrines  or  rules  which 
determine  the  equitable  rights  and  duties  of  individual  per- 
sons, and  which  are  constantly  cited  by  the  courts  in  their 
decisions  of  judicial  controversies.  They  are  rather  the 
fruitful  germs  from  which  these  doctrines  and  rules  have 
grown  by  a  process  of  natural  evolution.  They  do  not 
exclusively  belong  either  to  the  department  which  treats 
of  equitable  estates,  property,  and  other  primary  rights, 
nor  to  that  which  deals  with  equitable  remedies;  their 
creative  and  molding  influence  is  found  alike  throughout 
both  of  these  departments.  Among  the  most  important  of 
these  principia  which  have  been  crystallized  into  the  pithy 
form  of  maxims  are  the  following:  Equity  regards  that  as 
done  which  ought  to  have  been  done;  equity  looks  at  the 
intent,  rather  than  the  form;  equality  is  equity;  he  who 
seeks  equity  must  do  equity;  he  who  comes  into  equity 
must  come  with  clean  hands.  While  it  cannot  be  said  that 
these  and  other  similar  principles  have  all  produced  the 
same  or  equal  effects  upon  the  development  of  equity  juris- 
prudence, yet  it  is  undeniable  that  a  vast  proportion  of  the 
actual  doctrines  and  rules  which  make  up  the  system  of 
equity  are  necessary  inferences  from  or  direct  applications 
of  some  one  or  more  of  these  fundamental  maxims.  It  is 
evident,  therefore,  that  any  full  and  accurate  discussion  of 
the  doctrines  and  rules  which  constitute  the  two  main  divi- 
sions of  equity  jurisprudence  as  heretofore  described  must 
he  preceded  by  an  examination  into  the  nature,  meaning, 
extent,  and  effects  of  these  few  germinal  principles. 

§  361.  Equitable  Doctrines. — In  addition  to  these  true 
principia,  these  principles  which  run  through  and  affect  all 
parts  of  equity  jurisprudence,  there  are  also  certain  other 
comprehensive  doctrines  which  are  purely  equitable,  and 

§360,  (a)  The  text  is  quoted  in  Gavin  v.  Curtin,  171  111.  640,  49  N.  E, 
523. 


§  362  EQUITY    JURISPRUDENCE.  672 

largely  serve  to  distinguish  the  system  from  the  "law." 
The  doctrines  to  which  I  refer  are  neither  equitable  estates, 
nor  property,  nor  remedies,  nor  are  they  exclusively  con- 
cerned either  with  equitable  estates  and  other  similar 
rights,  or  with  equitable  remedies;  on  the  contrary,  they 
affect  to  a  greater  or  less  extent  both  the  equitable  rights 
of  property  and  the  administration  of  equitable  remedies. 
It  seems  expedient,  therefore,  in  order  to  avoid  unneces- 
sary repetition, — even  if  this  arrangement  is  not  essential 
in  any  scientific  method, — that  the  investigation  of  these 
peculiar  doctrines  should  precede  the  discussion  of  equi- 
table estates,  interests,  and  other  primary  rights,  and  of 
equitable  remedies.  The  following  are  illustrations  of  the 
doctrines  which  constitute  this  special  class :  The  equitable 
doctrines  concerning  penalties  and  forfeitures ;  the  doctrine 
concerning  priorities;  the  doctrine  concerning  notice;  the 
doctrine  of  election.  All  of  these  are  very  comprehensive 
in  their  nature  and  effects,  and  are  the  immediate  sources 
of  numerous  rules  in  all  branches  of  equity  jurisprudence. 

§  362.  Occasions  of  Equitable  Rights. — Finally,  there 
are  certain  facts  or  events  which  are  the  occasions  of 
numerous  equitable  rights,  both  primary  and  remedial,  and 
which  thus  give  rise  to  important  doctrines  and  rules  in 
every  branch  of  equity  jurisprudence.  These  facts  and 
events  have  sometimes  been  described  as  forming  a  part 
of  the  concurrent  jurisdiction ;  but  this  view,  as  has  already 
been  shown,  is  superficial  and  erroneous.  The  facts  and 
events  which  are  thus  peculiarly  the  occasions  of  equitable 
rights  are  fraud,  mistake,  and  accident.  Under  the  system 
of  classification  which  I  have  adopted,  these  subjects  do  not 
exclusively  belong  either  to  the  department  of  equitable 
estates  and  other  primary  rights,  nor  to  that  of  equitable 
remedies.  Although  not  the  sources  of  rules,  like  the  prin- 
ciples and  doctrines  mentioned  in  the  foregoing  paragraphs, 
they  are  the  occasions  which  give  rise  to  a  large  number 
of  rules,  and  their  examination  should,  in  any  proper  order, 


t)73  PRELIMINARY    SECTION.  §  362 

precede  the  discussion  of  equitable  property  and  equitable 
remedies.  This  second  part  will  therefore  be  separated 
into  three  chapters,  of  which  the  first  will  be  devoted  to 
the  fundamental  maxims  of  equity,  the  second  to  the  group 
of  peculiarly  equitable  doctrines  above  describe4,  and  the 
third  to  the  special  facts  and  events  which  are  the  occa- 
sions of  many  equitable  rights  and  remedies. 

1—43 


§  363  EQUITY   JURISPBUDENCE.  674 


CHAPTER  I. 

THE  FUNDAMENTAL  PRINCIPLES  OR  MAXIMS  OF 

EQUITY. 


SECTION  I. 


EQUITY  REGARDS   THAT   AS   DONE   WHICH  OUGHT   TO   BE 

DONE. 

ANALYSIS. 

§  363.  List  of  equitable  maxims. 

§364.  Equity  regards  as  done  what  ought  to  be  done;  its  importance. 

§§  365-377.  Its  true  meaning,  and  its  effects  upon  equitable  doctrines. 

§§  366-369.  Is  the  source  of  equitable  property  and  estates. 

§  366.  Sources  of  legal  property  or  titles  described. 

§  367.  Effect  of  an  executory  contract  at  law. 

§  368.  Effect  of  an  executory  contract  in  equity. 

§  369.  Sources  of  all  kinds  of  equitable  property  described. 

5§  370-376.  The  equitable  estates  which  are  derived  from  this  principle. 

§  371.  Conversion. 

§  372.  Contracts  for  the  purchase  and  sale  of  lands. 

§373.  Assignments  of  possibilities;  sale  of  chattels  to  be  acquired  in 
the  future;  assignments  of  things  in  action;  equitable  assign- 
ments of  moneys;  and  equitable  liens. 

§  374.  Express  trusts.  , 

§  375.  Trusts  arising  by  operation  of  law. 

§376.  Mortgage;  equity  of  redemption. 

§  377.  Conclusions. 

§  363.  List  of  Maxims. — Those  principles  whicli  are  so 
fundamental  and  essential  that  they  may  with  propriety 
be  termed  the  maxims  of  equity  are  the  following:  Equity 
regards  that  as  done  which  ought  to  be  done;  equity  looks 
to  the  intent,  rather  than  to  the  form ;  he  who  seeks  equity 
must  do  equity;  he  who  comes  into  equity  must  come  with 
clean  hands ;  equality  is  equity ;  where  there  are  equal  equi- 
ties, the  first  in  time  shall  prevail;  where  there  is  equal 
equity,  the  law  must  prevail;  equity  aids  the  vigilant,  not 
those  who  slumber  on  their  rights,  or  Vigilantibus  non 
dormientibus,  cequitas  subvenit;  equity  imputes  an  inten- 


G75  REGARDS  THAT  DONE  WHICH  OUGHT  TO  BE  DONE.       §  364 

lion  to  fulfill  an  obligation;  equity  will  not  suffer  a  wrong 
without  a  remedy:  and  equity  follows  the  law.  It  must  not 
be  supposed  that  all  these  maxims  are  equally  important^ 
or  that  all  have  been  equally  fruitful  in  the  development  of 
doctrines  and  rules;  but  it  is  not  an  exaggeration  to  say 
that  he  who  has  grasped  them  all  with  a  clear  comprehen- 
sion of  their  full  meaning  and  effects  has  already  obtained 
an  insight  into  whatever  is  essential  and  distinctive  in  the 
system  of  equity  jurisprudence,  and  has  found  the  explana- 
tion of  its  peculiar  doctrines  and  rules.^  I  purpose,  in  the 
successive  sections  of  this  chapter,  to  discuss  them  in  the 
order  given  above. 

§  364.  First  Maxim:  Its  Importance  and  General  Opera- 
tion.a — The  first  maxim  in  the  list  has  been  stated  in  some- 
what varying  language  by  different  text-writers,  but  with- 
out any  substantial  variation  in  the  meaning. i  I  think  the 
following  form  is  both  strictly  accurate  and  sufficiently  com- 
prehensive in  expressing  the  equitable  principle:  Equity 
regards  and  treats  that  as  done  which  in  good  conscience 
ought  to  be  done.  Some  writers  have  failed  to  apprehend 
the  full  significance  of  this  maxim,  and  have  described  its 
effects  in  altogether  a  too  narrow  and  partial  manner.  ^ 
Others  have  correctly  looked  upon  it  as  the  very  foundation 

§  364^  1  "Equity  looks  upon  that  as  done  which  ought  to  have  been 
done":  Story's  Eq.  Jur.,  §64g;  gnell's  Equity,  37  (10).  "What  ought 
to  be  done  is  to  be  considered  as  done":  2  Spence's  Eq.  Jur.  253;  Adams's 
Equity,  135. 

§364,  2  Thus,  Mr.  Justice  Story  (1  Eq.  Jur.,  §  64g),  and  Mr.  Snoll 
(Snell's  Equity,  37)  following  him,  say:  "The  true  meaning  of  this  maxim 
is,  that  equity  will  treat  the  subject-matter  of  a  contract,  as  to  collateral 
consequences  and  incidents,  in  the  same  manner  as  if  the  final  acts  contem- 
plated by  the  parties  had  been  executed  exactly  as  they  ought  to  have 

§  363,  (a)   The  text  is  cited  in  Otis  guinetti  v.  Rossen,  12  Cal.  App.  623, 

V.  Gregory,  111  Ind.  504,  13  N.  E.  39.  107  Pac.  560. 

Sections  363  et  seq.  are  cited  in  Lee  §  364,  (a)  Sections  364  et  seq.  are 

V.  Foushee,  91   Ark.  468,   120  S.  W.  cited  in  Woodbury  v.  Gardner,  77  Me. 

160.  68,  75. 

Sections  363-381  are  cited  in  San- 


§  364  EQUITY    JURISPRUDENCE.  676 

of  all  distinctively  equitable  property  rights,  of  all  equi- 
table estates  and  interests,  both  real  and  personal. ^  It  is  in 
fact  the  source  of  a  large  part  of  that  division  of  equity 
jurisprudence  which  is  concerned  with  equitable  property; 
the  doctrines  and  rules  which  create  and  define  equitable 
estates  or  interests  are  in  great  measure  derived  from  its 
operation.  So  far  from  the  maxim  being  confined  to  ex- 
press executory  contracts,  and  to  those  dispositions  of  prop- 
erty which  give  rise  to  an  equitable  conversion,  it  has  been 
applied  by  the  most  eminent  courts  to  all  classes  of  equities ; 
to  every  instance  where  an  equitable  ought  with  respect  to 
the  subject-matter  rests  upon  one  person  towards  another; 
to  every  kind  of  case  where  an  affirmative  equitable  duty  to 
do  some  positive  act  devolves  upon  one  party,  and  a  corre- 
sponding equitable  right  is  held  by  another  party.^  ^  When- 
been,  not  as  they  might  have  been,  executed.  .  .  .  The  most  frequent  cases 
of  the  application  of  the  rule  are  under  agreements."  This  description  is 
merely  the  substituting  one  practical  result  of  the  principle  in  the  place  of 
the  principle  itself. 

§  364,  3  Adams's  Equity,  135  (6th  Am.  ed.,  p.  295) :  "  'What  ought  to 
be  done  is  considered  in  equity  as  done' ;  and  its  meaning  is,  that  whenever 
the  holder  of  property  is  snbject  to  an  equity  in  respect  of  it,  the  court 
will,  as  between  the  parties  to  the  equity,  treat  the.  subject-matter  as  if 
the  equity  had  been  worked  out,  and  as  impressed  with  the  character  which 
it  would  then  have  borne.  The  simplest  operation  of  this  maxim  is  found 
in  the  rule  that  trusts  and  equities  of  redemption  are  treated  as  estates; 
but  its  effect  is  most  obvious  in  the  constructive  change  of  property  from 
real  to  personal  estate,  and  vice  versa,  so  as  to  introduce  new  laws  of 
devolution  and  transfer."  The  examples  given  of  trusts  and  equities  of 
redemption  plainly  show  that  Mr.  Adams's  definition  was  intended  to  in- 
clude all  equitable  property  as  resulting  from  this  single  principle.  This 
is  also  the  view  of  Mr.  Spence.  He  expressly  represents  all  trust  and 
otlier  equitable  estates,  whether  growing  out  of  executory  contract  creating 
the  trust,  or  out  of  a  will,  or  otherwise,  as  the  consequences  of  this  fruit- 
ful maxim.  See  2  Spence's  Eq.  Jur.  253  et  seq.,  and  also  the  titles  Trusts 
and  Equitable  Estates. 

§  364,  4  Frederick  v.  Frederick,  1  P.  Wms.  710.  A  person  had  con- 
tracted to  become  a  citizen  of  London,  but  died  before  he  had  carried  this 

§  364,  (b)  The  text  is  quoted  in  App.  447,  452,  453,  54  Am.  St.  Rep. 
Sourwine  v.  Supreme  Lodge,   12   Ind.       531,  536,  40  N.  E.  €46;  Western  Lum- 


(577  EEGARDS  THAT  DONE   WHICH  OUGHT  TO  BE  DONE.       §  364 

ever  courts  of  high  authority  have  dealt  with  the  principle 
in  a  narrower  manner,  and  have  given  to  it  a  more  re- 
stricted operation  and  effect,  their  language,  although  per- 
haps very  general  in  its  terms,  should  be  taken  as  confined, 

agreement  into  effect  by  taking  up  his  freedom.  His  widow  thereupon 
brought  a  suit  to  procure  his  personal  estate  to  be  distributed  in  accordance 
with  the  customs  of  London,  which  applied  to  citizens  only,  and  which 
prescribed  a  very  different  mode  of  distribution  from  that  which  prevailed 
under  the  statute  in  other  parts  of  England.  The  court,  invoking  the 
maxim,  held  that  the  deceased  should  be  regarded  as  though  he  were  actu- 
ally a  citizen  at  the  time  of  his  death,  and  that  his  estate  should  be  dis- 
tributed in  pursuance  of  the  custom.  This  decision  clearly  exhibits  the 
universality  of  the  maxim:  Burgess  v.  Wheate,  1  W.  Black.  123,  129,  1 
Eden,  177;  Lechmere  v.  Earl  of  Carlisle,  3  P.  Wms.  211;  Brewer  v.  Her- 
bert, 30  Md.  301,  96  Am.  Dec.  582;  McCaa  v.  Woolf,  42  Ala.  389;  Jordan 
V.  Cooper,  3  Serg.  &  R.  585;  Gardiner  v.  Gerrish,  23  Me.  46;  Peter  v. 
Beverly,  10  Pet.  534,  563 ;  Taylor  v.  Benham,  5  How.  234,  269 ;  Common- 
wealth V.  Martin,  5  Munf.  117,  122;  Pratt  v.  Taliaferro,  3  Leigh,  428: 
Coventry  v.  Barclay,  3  De  Gex,  J.  &  S.  320,  328,  per  Lord  Chancellor  West- 
bury.  In  this  case  the  question  in  dispute  was,  whether  a  partner — Bevan 
— was  bound  by  certain  accounts  settled  with  his  co-partners,  or  wlietlier 
he  could  disregard  them,  and  have  a  general  accounting  gone  into.  By  the 
partnership  articles  it  was  stipulated  that  on  a  certain  day  each  year  the 
accounts  of  the  whole  past  year  should  be  made  up,  presented  to  all  the 

ber  &  Pole  Co.  v.  City  of  Golden,  23  ber  of  a  beneficial  association  in  good 
Colo.  App.  461,  130  Pac.  1027;  cited,  standing  and  entitled  under  its  con- 
O'Daniel  v.  Gaynor,  150  Ala.  205,  43  stitution  and  by-laws  to  be  trans- 
South.  205;  Sanguinetti  v.  Rossen,  12  f erred  from  one  endowment  class  to 
Cal.  App.  623,  107  Fac.  560;  Lynch  v.  another,  requested  to  be  so  trans- 
Moser,  72  Conn.  714,  46  Atl.  153;  f erred,  and  did  all  that  could  be  re- 
Scott  V.  Scott,  51  Ind.  App.  194,  99  quired  of  him  to  entitle  him  to  enter 
N.  E.  435 :  Martin  v.  Martin,  250  Mo.  such  class,  but  his  request  was  wrong- 
539,  157  S.  W.  575  (husband,  in  con-  fully  and  arbitrarily  refused.  After 
sideration  of  marriage,  agreed  to  his  death,  the  court,  recognizing  the 
sdopt  his  wife's  child,  but  failed  to  flexibility  of  equitable  remedies,  and 
take  the  statutory  steps;  equity  en-  quoting  the  above  passage  of  the  text, 
forces  the  rights  growing  out  of  such  granted  relief  as  though  the  transfer 
duty)  ;  Shipman  v.  Lord,  58  N.  J.  Eq.  had  been  effected.  For  limitations  on 
380,  44  Atl.  215;  affirmed,  60  N.  J.  the  application  of  the  maxim  to  at- 
Eq.  484,  46  Atl.  1101;  Preston  v.  Rus-  tempted  change  of  beneficiary  in  such 
sell,  71  Vt.  151,  44  Atl.  115.  In  Sour-  an  association,  see  Modern  Woodmen 
wine  V.  Supreme  Lodge,  supra,  12  of  America  v.  Headle,  88  Vt.  37,  90 
Ind.  App.  447,  452,  453,  54  Am.  St.  Atl.  893;  Knights  of  Columbus  v. 
Eep.  532,  536,  40  N.  E.  646,  a  mem-  Chirran    (Conn.),    99    AtL    485;    and 


§  365  EQUITY    JURISPBUDENCE.  678 

and  as  intended  by  the  court  to  be  confined,  to  the  particular 
application  of  the  maxim  then  under  judicial  investigation.^ 

§  365.  Its  Meaning  and  Effects. — What  is  the  true  mean- 
ing of  the  principle,  taken  in  its  most  comprehensive  and 
generic  sense?  and  what  are  its  true  effects  upon  the  system 
of  distinctive  doctrines  and  rules  which  constitute  the  equity 

partners,  settled,  and  signed  by  each.  At  the  appointed  day  in  one  year 
the  accounts  were  thus  made  up,  and  laid  before  all  the  firm,  except  Bevan, 
settled  and  signed  by  them.  Bevan  was  not  present,  on  account  of  ill- 
ness, and  never  signed  these  accounts,  but  afterwards  saw  them,  and 
verbally  assented  or  agreed  to  their  correctness.  The  same  took  place  on 
another  year.  On  these  facts  Lord  Westbury  said  (p.  228)  :  "It  is  the 
rule  of  a  court  of  equity  to  consider  that  as  done  which  ought  to  be  done ; 
and  if,  therefore,  I  find  that  the  accounts  and  valuation  of  July,  1860,  at 
the  making  of  which  Mr.  Bevan  was  not  present,  were  afterwards  accepted 
and  agreed  to  by  him,  I  shall  hold  that  the  account  was  in  equity  signed 
by  him  at  the  time  when  it  was  so  accepted."  Here,  it  will  be  seen,  this 
most  able  judge  applied  the  maxim,  not  to  the  title  and  property  in  land 
or  chattels,  but  to  a  purely  personal  act,  and  held  that  equity  would  regard 
such  a  personal  act  as  done,  although  in  fact  it  never  was  done,  because  it 
ought  to  be  done.  The  case  is  in  exact  harmony  with  Frederick  v.  Freder- 
ick, 1  P.  Wms.  710. 

§  364,  5  This  is  the  universal  rule  for  the  interpretation  of  judicial  dicta, 
and  it  is  the  only  mode  of  avoiding  irreconcilable  conflict  of  opinion.  The 
narrow  and  restricted  effect  given  to  the  maxim  is  most  frequently  found 
in  decisions  concerning  equitable  conversion;  and  it  has  no  other  legiti- 
mate meaning  than  that  of  defining  the  limits  within  which  th«  principle 
can  operate  in  such  cases.  See  Burgess  v.  Wheate,  1  W.  Black.  123,  129, 
1  Eden,  177;  Craig  v.  Leslie,  3  Wheat.  563,  577,  per  Washington,  J.; 
Douglas  Co.  V.  Union  Pacific  R.  R.,  5  Kan.  615. 

compare    Walsh    v.    St.    Louis    Union  may  be  enforced)  ;  Petty  v.  Gaeking, 

Trust  Co.  (Walsh  v.  Sovereign  Camp,  97  Ark.  217,  33  L.  R.  A.  (N.  S.)  175, 

Woodmen   of  World),   148   Mo.   App.  133  S.  W.  832  (one  who  promised  in 

179,  127  S.  W.  645.     For  other  illus-  writing  to  sign  a  note  with  another, 

trations   of   the   maxim,   see  Ames  v.  held  in  equity  to  be  a  joint  maker)  ; 

Richardson,  29  Minn.  330,   13  N.  W.  Ogden  v.  Delaware  Eiver  &  A.  R.  Co., 

137;    Newkirk   v.    Marshall,    35    Kan.  80  N.   J.   E'q.   191,   83  Atl.  991    (one 

77,  10  Pac.  571.     See,  also,  Murphey  who  advanced  money  to  a  corporation 

V.  Brown,  12  Ariz.  268,  100  Pac.  801  under  promise  of  a  deposit  of  stock 

(where   there   is   a   valid    contract   to  as    security    will    be    regarded    as    a 

lease,  relation  of  landlord  and  tenant  stockholder    in    equity) ;     Goodell    v, 

exists   in   equity,    and   landlord's   lien  Monroe   (N.  J.  Eq.),  100  Atl.  238. 


t)7y  REGARDS  THAT  DONE  WHICH  OUGHT  TO  BE  DONE,       §  3G5 

jurisprudence?  In  the  first  place,  it  should  be  ohserved 
that  the  principle  involves  the  notion  of  an  equitable  obli- 
gation existing  from  some  cause;  of  a  present  relation  of 
equitable  right  and  duty  subsisting  between  two  parties, — 
a  right  held  by  one  party,  from  whatever  cause  arising,  that 
the  other  should  do  some  act,  and  the  corresponding  duty, 
the  ought  resting  upon  the  latter  to  do  such  act.^  Equity 
does  not  regard  and  treat  as  done  what  might  be  done,  or 
what  could  be  done,  but  only  what  ought  to  be  done.  Nor 
does  the  principle  operate  in  favor  of  every  person,  no  mat- 
ter what  may  be  his  situation  and  relations,  but  only  in  favor 
of  him  who  holds  the  equitable  right  to  have  the  act  per- 
formed, as  against  the  one  upon  whom  the  duty  of  such  per- 
formance has  devolved.!  ^     Wherever  between  two  parties, 

§  365,  1  This  time  meaning  of  the  principle  was  admirably  stated  by 
Sir  Thomas  Clarke,  M.  R.,  in  Burgess  v.  Wheate,  1  W.  Black.  123,  129,  1 
Eden,  177;  "Nothing  is  looked  upon  in  equity  as  done  but  what  ought  to 
have  been  done,  not  what  might  have  been  done.  Nor  will  equity  consider 
things  in  that  light  in  favor  of  everybody;  but  only  of  those  who  had  a 
right  to  pray  it  might  be  done.  The  rule  is,  that  it  shall  either  be  between 
the  parties  who  stipulate  what  is  to  be  done,  or  those  who  stand  in  their 
place."  In  the  last  sentence  the  judge  is  merely  speaking  by  way  of  illus- 
tration of  the  case  where  the  right  and  duty  arise  from  an  express  execu- 
tory contract ;  he  has  no  intention  of  confining  the  operation  of  the  maxim 
to  such  contracts.  While  this  passage  presents  the  maxim  in  its  true 
meaning  and  with  its  true  limitations  under  all  circumstances  of  its  ap- 
plication, there  are  some  other  judicial  dicta  which  must  be  carefully 
confined  to  the  particular  facts  of  the  case  in  which  they  were  uttered,  or 
else  they  would  be  quite  misleading,  and  some,  perhaps,  which  do  not  even 
admit  of  this  explanation,  but  must  be  regarded  as  essentially  ei'roneous. 
Thus  in  the  leading  American  case  of  Craig  v.  Leslie,  3  Wheat,  563,  577,  a 
testator,  citizen  of  the  United  States,  devised  all  his  lands  to  trustees,  with 
directions  to  convert  the  same  into  money  and  pay  the  proceeds  to  tlie 
testator's  brother,  who  was  an  alien.     The  attorney-general  of  Virginia,  in 

§365,    (a)    The   text  is   quoted   in  205   (maxim  does  not  apply  to  judi- 

Western  Lumber  &  Pole  Co,  v.  City  cial  acts). 

of    Golden,    23    Colo.    App.    461,    130  §365,    (b)    The   text   is   quoted   in 

Pac.  1027;  Geiger  v.  Bitzer,  80  Ohio  Geiger  v.  Bitzer,  80  Ohio  St.  65,  17 

St.  65,  17  Ann.  Cas.  151,  22  L.  R.  A.  Ann.  Cas.  151,  22  L.  R.  A.    (N.  S.) 

(N.  S.)   285,  88  N.  E.  134;  O'Daniel  285,  88  N,  E.  134. 
V,   Gaynor,   150   Ala.   205,   43   South, 


§  oG5  EQUITY    JURISPRUDENCE.  680 

A  and  B,  an  ** equity"  exists  with  respect  to  a  subject- 
matter  held  by  one  of  them,  B,  in  favor  of  the  other,  A,  then 
as  between  these  two  a  court  of  equity  regards  and  treats 
the  subject-matter  and  the  real  beneficial  rights  and  inter- 
ests of  A  as  though  the  "equity"  had  actually  been  worked 
out,  and  as  impressed  with  the  character  and  having  the 

which  state  the  lands  were  situated,  claimed  that  the  lands  of  the  testator 
had  escheated  to  that  state.  The  only  question  for  decision  was,  whether, 
by  the  doctrine  of  equitable  conversion,  the  real  estate  devised  by  the  tes- 
tator was  to  be  regarded  as  money,  so  that  the  alien  legatee  could  chiini 
and  hold  the  bequest,  or  whether  it  remained  real  estate,  and  so  was  liable 
to  an  escheat.  The  court,  with  a  very  elaborate  examination  of  the 
authorities  and  discussion  of  the  rules  upon  the  subject,  held  that  an  equi- 
table conversion  had  taken  place,  and  the  gift  was  therefore  valid  as  a 
bequest  of  personal  property.  In  his  opinion  Mr.  Justice  Washington 
said :  "The  principle  upon  which  the  whole  of  this  doctrine  is  founded  is, 
that  a  court  of  equity,  regarding  the  substance,  and  not  the  mere  form  and 
circumstances'  of  agreements  and  other  instruments,  considers  things 
directed  or  agreed  to  be  done  as  having  been  actually  performed,  where 
nothing  has  intervened  to  prevent  a  performance.  This  qualification  of 
the  more  concise  and  general  rule  that  equity  considers  that  to  be  done 
which  is  agreed  to  be  done  will  comprehend  the  cases  which  come  under 
this  head  of  equity."  It  is  evident  that  the  judge  is  here  speaking  of  the 
maxim  solely  in  its  connection  with  the  particular  doctrine  of  "equitable 
conversion."  He  shows  no  intention  of  narrowing  it,  or  of  stating  any 
qualification  upon  it,  in  its  application  to  or  effect  upon  the  equity  juris- 
prudence in  general.  In  Douglas  Co.  v.  Union  Pae.  R.  R.,  5  Kan.  615,  the 
only  question  was,  whether  lands  held  by  the  railroad  were  liable  to  be 
taxed  for  county  purposes.  The  company  was  in  possession  of  the  land 
under  a  statute  or  contract  with  the  United  States,  but  their  ultimate 
right  and  title  to  the  land  depended  upon  their  performance  of  numerous 
stringent  conditions,  none  of  which  were  yet  performed.  By  the  terms  of 
the  contract,  all  these  conditions  must  be  fully  performed  at  the  very  times 
specified,  and  a  failure  to  perform  any  one  within  the  time  forfeited  the 
company's  whole  right.  The  county  officers  invoked  the  maxim,  and 
claimed  that  the  railroad  were  equitable  owners.  The  court  held  that  the 
interest  of  the  company  was  so  conditional,  contingent,  and  uncertain  that 
it  was  not  property  susceptible  of  taxation.  This  disposed  of  the  whole 
case.  The  maxim  under  discussion  plainly  had  no  application,  for  as  yet 
there  was  no  obligation  upon  the  United  States  to  convey.  Equity  could 
not  regard  anything  as  done,  because  there  was  nothing  yet  which  ought  to 
be  done.    Notwithstanding  this,  the  court  went  on  as  follows;  "In  equity 


681  EEGARDS  THAT  DONE  WHICH  OUGHT  TO  BE  DONE.       §  365 

nature  which  they  then  would  have  borne. ^  When  in  tliis 
proposition  it  is  said  that  an  ''equity"  exists  between  the 
two  parties,  the  meaning  is,  that  some  equitable  obligation 
to  do  some  positive  act  with  respect  to  the  subject-matter, 
arising  from  a  cause  recognized  by  the  rules  of  equity  juris- 
prudence, rests  upon  B,  and  a  corresponding  equitable  right 
to  have  the  act  done  by  B  with  respect  to  the  same  subject- 
matter  springing  from  the  same  efficient  cause,  is  held  by  A. 
This  active  relation  subsisting  between  the  two  parties,  a 
court  of  equity,  partly  acting  upon  its  fundamental  principle 
of  going  beneath  the  mere  external  form  and  appearance  of 
things  and  dealing  with  the  real  fact,  the  real  beneficial 
truth,  and  partly  for  the  purpose  of  making  its  remedies 
more  complete,  treats  the  resulting  rights  of  A  as  though 
the  obligation  of  B  had  already  been  performed;  regards 
A,  in  fact,  as  clothed  with  the  same  ultimate  interests  in 
the  subject-matter  which  he  would  receive  and  hold  if  B 
had  actually  fulfilled  his  obligation  by  doing  the  act  which 
he  ought  to  do.  Of  course  this  interest  thus  possessed  by  A 
is  and  must  be  a  purely  equitable  one,  recognized  by  courts 

there  is  a  maxim  that  equity  will  consider  as  done  that  which  ought  to  be 
done,  and  that  it  will  look  upon  all  things  agreed  to  be  done  as  actually 
performed.  As  an  application  of  this  maxim,  equity  generally  considers 
that  when  land  is  sold  on  credit,  and  the  deed  is  to  be  made  when  the  pur- 
chase-money is  to  be  paid,  that  the  land  at  the  time  the  sale  is  made  be- 
comes the  vendee's  and  the  purchase-money  the  vendor's;  that  the  vendor 
becomes  at  once  the  trustee  of  the  vendee  with  respect  to  the  land,  and  the 
vendee  the  trustee  of  the  vendor  with  respect  to  the  purchase-money.  But 
this  maxim  never  applies  where  time  is  of  the  essence  of  the  contract,  and 
where  the  land  is  subject  to  absolute  forfeiture  on  failure  of  some  condi- 
tion of  the  sale  being  performed;  for  there  is  no  necessity  in  such  a  case 
for  courts  of  equity  to  resort  to  any  such  fictio7t,"  etc.  I  only  wish  to 
notice  this  very  remarkable  expression  of  the  court,  which  represents  the 
operation  of  this  fundamental  principle  of  equity  jurisprudence  as  a  fic- 
tion. If  the  equitable  estate  of  the  vendee  in  an  executoiy  contract  for 
the  sale  of  land  is  a  fiction,  then  every  other  species  of  equitable  properly 
and  interest  must  be  equally  a  fiction,  for  they  all  stand  upon  the  same 
principle,  and  in  fact  the  greater  part  of  equity  jurisprudeuco  must  be 
fictitious:  See  Daggett  v.  Rankin,  31  Cal.  321,  326,  per  Currey,  J. 
§  365,  2  See  Adams's  Equity,  135  (6th  Am.  ed.,  p.  295). 


§  366  EQUITY    JURISPRUDENCE.  682 

of  equity  alone,  since  no  legal  interest  in  the  subject-matter 
could  become  vested  in  A  except  by  the  complete  perform- 
ance of  his  obligation  on  the  part  of  B, — his  really  doing  the 
act  which  his  duty  bound  him  to  do. 

§  366.  Is  the  Source  of  Equitable  Property — Sources  of 
Legal  Property  or  Titles. — All  kinds  of  equitable  property, 
as  distinguished  from  legal  ownership,  are,  with  perhaps 
one  or  two  particular  exceptions,  derived  from  this  fruitful 
and  most  just  principle.  Its  full  operation  can  best  be 
understood  and  appreciated  from  a  brief  comparison  of  the 
modes  in  which  absolute  property — that  is,  the  perfect 
right  of  ownership,  dominium — arises  or  is  acquired  at  law, 
with  the  modes  in  which  the  analogous  right  of  property 
arises  according  to  the  doctrines  of  equity.  In  the  earliest 
and  rudest  periods  of  the  common  law  absolute  property 
could  only  be  acquired  inter  vivos  by  the  accurate  observ- 
ance of  certain  arbitrary,  external  forms,  or  symbolic  acts 
and  gestures. 1  Although  with  an  advancing  civilization 
these  external  and  symbolic  acts  have  disappeared,  still, 
down  to  the  present  time  the  only  absolute  property  or 
right  of  ownership  which  the  law  recognizes,  and  which 
courts  of  law  protect  by  their  legal  actions  and  remedies, 
whether  in  land  or  in  things  personal,  must  arise  and  be 
acquired  in  certain  fixed,  determinate  methods,  which  alone 
constitute  the  "titles"  known  to  the  law, — using  that  word 
in  its  strict  and  true  sense  as  means  of  acquiring  property. 
Without  following  some  one  of  these  certain  modes,  no  legal 
property  can  be  obtained  or  transferred  as  between  persons 
in  their  private  capacities. ^     The  most  important  of  these 

§  366^  1  This  is  true  of  every  system  of  national  law  in  its  earliest, 
semi-barbarous,  and  purely  customary  stage.  The  "livery  of  seisin"  of 
the  Saxon  and  ancient  common  law  was  identical  in  principle  with  the 
"mancipation"  by  which  complete  dominion  could  alone  be  transferred  in 
the  primitive  Roman  law, — the  early  jus  civile. 

§  366,  2  As  I  am  speaking  only  of  private  relations,  I  purposely  omit 
all  mention  of  the  public  modes  in  which  property  might  be  acquired  by 
the  state, — escheat,  forfeiture,  eminent  domain,   and  the   like, — and  also 


683  REGARDS  THAT  DONE  WHICH  OUGHT  TO  BE  DONE.       §  366 

common-law  methods  which  must  he  pursued  in  order  that 
a  legal  property  may  be  acquired  in  land  are:  A  conveyance 
under  seal  whereby  the  seisin  was  transferred;  a  will;  in- 
heritance; marriage  whereby  a  freehold  estate  Tor  life 
might  be  vested  in  one  of  the  spouses ;  actual  disseisin  with 
an  adverse  possession  during  the  period  prescribed  by  the 
statute  of  limitations;  and  under  very  special  circumstances, 
accession. 3  The  important  modes  of  acquiring  a  legal  prop- 
erty in  things  personal  are :  A  true  present  sale  or  bailment 
where  the  chattel  is  in  existence  and  capable  of  immediate 
manual  transfer;  a  will;  a  succession  in  case  of  intestacy 
as  regulated  by  the  statute  of  distributions;  marriage; 
adverse  possession  aided  by  the  statute  of  limitations ;  occu- 
pancy; and  the  various  acts  which  are  included  under  the 
generic  term  "accession."  ^  Unless  a  person  has  obtained 
the  legal  property  in  a  specific  tract  of  land  through  some 
one  of  the  foregoing  modes,  he  cannot  as  demandant  main- 
tain a  real  action  to  recover  such  land,  or  as  lessor  of  the 
plaintiff  under  the  ancient  practice,  or  as  plaintiff  under 
the  modern,  maintain  an  action  of  ejectment  for  the  same 
purpose.  A  legal  estate  acquired  by  some  legal  title  is  in- 
dispensable. Upon  the  same  principle,  unless  a  person  has 
a  legal  property  in  a  specific  chattel,  obtained  through  some 
mode  recognized  by  the  law,  he  cannot  as  plaintiff  main- 
tain any  of  the  proprietary  actions  at  law  for  the  purpose 
of  recovering  the  article  itself,  or  its  value  in  money,  or 

those  semi-public  methods  allowed  by  statutes  in  which  property  is  vested 
in  certain  official  persons,  such  as  assignees  in  bankruptcy  or  insolvency, 
and  the  like. 

§  366,  3  The  case  of  "alluvion,"  where  the  proprietor's  land  grows,  as  it 
were. 

§  366,  4  In  all  the  instances  whei'e  property  is  divested  and  transferred 
through  the  agency  of  some  administrative  officer, — e.  g.,  a  sheriff  acting 
in  pursuance  of  a  judicial  authority, — the  final  means  of  transfer  and  of 
acquisition  is  a  sale  in  case  of  chattels,  and  a  conveyance  in  case  of  land. 
The  only  real  distinction  between  these  cases  and  those  of  ordinary  sales 
and  conveyances  lies  in  the  person  who  as  vendor  or  grantor  makes  the 
transfer. 


§  367  EQUITY   JURISPRUDENCE.  684 

damages  for  an  invasion  of  his  ownership,  replevin  or  det- 
inue, trespass  or  trover.  While  he  may  have  legal  rights 
with  respect  to  the  thing,  which  courts  of  law  will  protect, 
and  for  the  violation  of  which  he  may  be  entitled  to  appro- 
priate legal  remedies,  his  legal  right  of  property  can  only 
arise  and  exist  upon  the  occasion  of  certain,  determinate 
acts  or  events.^ 

§  367.  Effect  of  an  Executory  Contract  at  Law. — Wh at  is 
the  effect  at  law  of  a  contract  whereby  the  owner  agrees  to 
sell  and  convey  a  designated  tract  of  land,  but  which  is  not 
a  true  conveyance  operating  as  a  present  transfer  of  the 
legal  estate  and  the  legal  seisin?  It  is  wholly,  in  every 
particular,  executory,  and  produces  no  effect  upon  the  re- 
spective estates  and  titles  of  the  parties,  and  creates  no 
interest  in  nor  lien  or  charge  upon  the  land  itself.  The 
vendor  remains,  to  all  intents,  the  owner  of  the  land;  he 
can  convey  it  to  a  third  person  free  from  any  legal  claim 
or  encumbrance ;  he  can  devise  it  in  the  same  manner ;  on  his 
death  intestate,  it  descends  to  his  heirs.  The  contract  in 
no  manner  interferes  with  his  legal  right  to  and  estate  in 
the  land,  and  he  is  simply  subject  to  the  legal  duty  of  per- 
forming the  contract,  or  to  the  legal  liability  of  paying  such 
damages  for  its  non-performance  as  a  jury  may  award, 
which  are  collectible  from  his  property  generally.     On  the 

§  366,  5  The  Roman  law  furnished  a  complete  analogy  to  this  condition 
in  our  own  jurisprudence.  The  absolute  do^ninium,  or  property  ex  jure 
quiritum,  the  "quiritary  property"  of  the  early  law,  which  could  only  be 
held  by  a  Roman  citizen,  and  could  only  be  acquired  by  certain  arbiliary 
modes,  as  by  the  symbolic  process  of  mancipation  in  case  of  res  mancipi, 
or  by  usucaption,  or  by  a  testament  executed  in  strict  compliance  with  the 
prescribed  formalities,  or  by  succession  to  the  agnates  in  case  of  intes- 
tacy, was  the  exact  analogue  to  our  legal  property  or  legal  estates;  while 
the  property  in  bonis — the  "bonitary  property" — gradually  permitted  by 
the  jjretorian  legislation,  which  could  be  acquired  in  derogation  of  these 
modes,  as,  for  example,  by  an  ordinary  sale  and  delivery  without  the  sym- 
bolism of  a  mancipation,  or  by  a  testament  executed  without  a  compliance 
with  the  ancient  forms,  or  by  a  succession  to  the  cognates,  etc.,  was  sub- 
stantially identical  with  our  equitable  property  or  equitable  estates. 


685  REGARDS  THAT  DONE  WHICH  OUGHT  TO  BE  DONE.       §  368 

other  hand,  the  vendee  acquires  no  interest  nor  property 
right  whatever;  he  can  maintain  no  proprietar}^  nor  posses- 
sory action  for  its  recovery;  his  right  is  a  mere  thing  in 
action  to  recover  compensation  in  damages  for  a  breach 
from  the  vendor,  and  his  duty  is  a  debt, — an  obligation  to 
pay  the  stipulated  price;  on  his  death  both  this  right  and 
this  duty  pass  to  his  personal  representatives,  and  not  to 
his  heirs.  In  short,  the  vendee  obtains  at  law  no  real  prop- 
erty nor  interest  in  real  property.  The  relations  between 
the  two  contracting  parties  are  wholly  personal.  No  change 
is  made  until,  by  the  execution  and  delivery  of  a  deed  of 
conveyance,  the  estate  in  the  land  passes  to  the  vendee.^ 
It  is  unnecessary  to  describe  the  similar  legal  effects  pro- 
duced by  agreements  to  sell  chattels,  sales  of  articles  to  be 
acquired  by  the  vendor  in  the  future,  and  all  other  contracts 
which  are  executory  in  their  nature. 

§  368.  Effect  of  an  Executory  Contract  in  Equity. — The 
full  significance  of  the  principle  that  equity  regards  and 
treats  as  done  what  ought  to  be  done  throughout  the  whole 
scope  of  its  effects  upon  equity  jurisprudence  is  disclosed 
in  the  clearest  light  by  the  manner  in  which  equity  deals 
with  executory  contracts  for  the  sale  of  land  or  chattels, 
which  presents  such  a  striking  and  complete  contrast  with 
the  legal  method  above  described.  While  the  legal  rela- 
tions between  the  two  contracting  parties  are  wholly  per- 
sonal,— things  in  action, — equity  views  all  these  relations 
from  a  very  different  stand-point.  In  some  respects,  and 
for  some  purposes,  the  contract  is  executory  in  equity  as 
well  as  at  law;  but  so  far  as  the  interest  or  estate  in  the 
land  of  the  two  parties  is  concerned,  it  is  regarded  as  exe- 
cuted, and  as  operating  to  transfer  the    estate   from    the 

§  367,  (a)  This  paragraph  is  quoted  not   have    to    reconvey    anything   to 

in   Ciimmings   v.   Duncan,   22   N.   D.  the  vendor).     The   text  of  Pomeroy 

534,  Ann.  Cas.  1914B,  976,  134  N.  W,  on  Contracts,  §  314,  which  is  almost 

712.     The  greater  part  of  the  para-  identical  with   the   above,  is  quoted 

graph   is   quoted  in   Miller   v.    Shel-  in  Davis  v.  Williams,  130  Ala.  530, 

burn,   15  N.  D.   182,   107   N.  W.  51  537,  89  Am.  St.  Eep.  55,  60,  54  L.  E. 

(vendee,    in    order   to   rescind,   does  A.  749,  30  South.  488. 


§368 


EQUITY    JURISPRUDENCE. 


686 


vendor  and  to  vest  it  in  the  vendee.  By  the  terms  of  the 
contract  the  land  ought  to  be  conveyed  to  the  vendee,  and  the 
purchase  price  ought  to  be  transferred  to  the  vendor ;  equity 
therefore  regards  these  as  done:  the  vendee  as  having  ac- 
quired the  property  in  the  land,  and  the  vendor  as  having 
acquired  the  property  in  the  price.  The  vendee  is  looked 
upon  and  treated  as  the  owner  of  the  land;  an  equitable 
estate  has  vested  in  him  commensurate  with  that  provided 
for  by  the  contract,  whether  in  fee,  for  life,  or  for  years; 
although  the  vendor  remains  owner  of  the  legal  estate,  he 
holds  it  as  a  trustee  for  the  vendee,  to  whom  all  the  bene- 
ficial interest  has  passed,  having  a  lien  on  the  land,  even  if 
in  possession  of  the  vendee,  as  security  for  any  unpaid  por- 
tion of  the  purchase-money.i  ^     The  consequences  of   this 

§  368,  1  It  is  a  great  mistake,  opposed  to  the  fundamental  notions  of 
equity,  to  suppose  that  the  equity  maxim  does  not  operate,  and  the  vendee 
does  not  become  equitable  owner  until  and  as  far  as  he  has  actually  paid 
the  stipulated  price.  This  erroneous  view  has  sometimes  been  suggested, 
and  sometimes  even  held,  in  a  few  American  decisions;  but  it  shows  a  mis- 
conception of  the  whole  equitable  theory.  See,  merely  as  an  example, 
some  of  the  dicta  in  Douglas  Co.  v.  Union  Pac.  R.  R.,  5  Kan.  615.  In 
truth,  the  vendee  becomes  equitable  owner  of  the  land,  and  the  vendor 
equitable  owner  of  the  purchase-money,  at  once,  upon  the  execution  and 


§368,  (a)  The  text  is  quoted  in 
Marvin  v.  Stimpson,  23  Colo.  174,  46 
Pac.  673;  also  in  Speicher  v.  Lacy, 
28  Okl.  541,  35  L.  R.  A.  (N.  S.)  1066, 
115  Pac.  271;  in  Fonts  v.  Foudray, 
31  Okl.  221,  Ann.  Cas.  1913E',  301,  38 
L.  R.  A.  (N.  S.)  251,  120  Pac.  960; 
in  Phillis  v.  Gross,  32  S.  D.  438,  143 
N.  W.  373;  in  Taylor  v.  Interstate 
Inv.  Co.,  75  Wash.  490,  135  Pac.  240; 
cited,  Peay  v.  Seigler,  48  S.  C.  496, 
59  Am.  St.  Rep.  731,  26  S."  E.  885 
(vendor's  lien) ;  Savings  &  Loan  Soc. 
V.  Davidson,  97  Fed.  696,  38  C.  C.  A. 
365;  United  States  v.  Cooper,  196 
Fed.  584;  Stubbs  v.  Pitts,  84  Ark. 
160,  104  S.  W.  1110  (though  the  pur- 
chase price  is  not  paid);  Lee  v.  Fou- 


shee,  91  Ark.  468,  120  S.  W.  160; 
Ehrenstrom  v.  Phillips,  9  Del.  Ch. 
74,  77  Atl.  80;  Manning  v.  North 
British  Mercantile  Ins.  Co.,  123  Mo. 
App.  456,  99  S.  W.  1095  (though  ven- 
dee is  out  of  possession) ;  Marion  v. 
Wolcott,  68  N.  J.  Eq.  20,  59  Atl, 
242;  Woodward  v.  MeCoIlum,  16 
N.  D.  42,  111  N.  W.  623;  Singleton 
v.  Cuttino  (S.  C),  92  S.  E.  1046; 
Sanderson  v.  Wellsford,  53  Tex.  Civ. 
App.  637,  116  S.  W.  382.  The  text 
of  Pomeroy  on  Contracts,  §  314, 
which  is  almost  identical  with  the 
above,  is  quoted  with  approval  in 
Davis  V.  Williams,  130  Ala.  530,  537, 
538,  89  Am.  St.  Rep.  55,  60,  61,  54 
L.  R.  A.  749,  30  South.  488. 


687  BEGARDS  THAT  DONE  WHICH  OUGHT  TO  BE  DONE,       §  368 

doctrine  are  all  followed  out.  As  the  vendee  has  acquired 
the  full  equitable  estate, — although  still  wanting  the  con- 
firmation of  the  legal  title  for  purposes  of  security  against 
third  persons, — he  may  convey  or  encumber  it;  may  devise 
it  by, will;  on  his  death  intestate,  it  descends  to  his  heirs, 
and  not  to  his  administrators ;«  in  this  country,  his  wife  is 
entitled  to  dower  in  it;  a  specific  performance  is,  after  his 
death,  enforced  by  his  heirs ;  in  short,  all  the  incidents  of  a 
real  ownership  belong  to  it.  As  the  vendor's  legal  estate 
is  held  by  him  on  a  naked  trust  for  the  vendee,  this  trust, 
impressed  upon  the  land,  follows  it  in  the  hands  of  other 
persons  who  may  succeed  to  his  legal  title, — his  heirs  and 
his  grantees,  who  take  with  notice  of  the  vendee's  equitable 
right.  In  other  words,  the  vendee's  equitable  estate  avails 
against  the  vendor's  heirs,  devisees,  and  other  voluntary 
assignees,  and  his  grantees  with  notice;^  it  is  only  when 

delivery  of  the  contract,  even  before  any  portion  of  the  price  is  paid.^' 
It  is  true  that  the  vendee's  equitable  estate  is  encumbered  or  charged  with 
a  lien  as  security  for  the  unpaid  price,  and  he,  therefore,  may,  by  the 
enforcement  of  this  lien  upon  his  final  default  in  making  payment,  lose 
his  whole  estate,  in  the  same  manner  as  a  mortgagor  may  lose  his  interest 
by  a  foreclosure.  But  this  lien  of  the  vendor  is  not  inconsistent  with  the 
vendee's  equitable  estate,  any  more  than  the  equitable  lien  of  an  ordinary 
mortgage  is  inconsistent  with  the  mortgagor's  legal  estate.  See  cases  cited 
in  note  at  end  of  this  paragraph. 

§368,    (b)    Quoted  in  Wiseman  v.  §368,    (d)    The    text    is    cited    in 

Beckwith,  90  Ind.  185,  190,  holding  Walker  v.  Goldsmith,  14  Or.  125,  12 

that  the  equitable  estate  of  the  ven-  Pac.   537,   dissenting   opinion    where 

dee  is  vested  in  him  by  the  contract,  it  is  urged  that  the  vendee's  estate 

and   cannot   be    impaired    by    subse-  should    not    prevail    against    the  lis 

quent  legislation.     See,  also,   Young  pendens  of  a  subsequent  suit  against 

V.  Guy,  87  N.  Y.  462.  the   vendor.     On    this    question    see 

§  368,    (c)    The   text  is    quoted   in  post,   §  637,  and  notes.     The  text  is 

Marvin  v.  Stimpson,  23  Colo.  174,  46  cited   in    Woodbury    v.    Gardner,    77 

Pac.  673;  and  in  Stubbs  v.  Pitts,  84  Me.    68,    75,    to    the    effect   that    the 

Ark.   160,    104   S.   W.    1110;   Hill   v.  vendor's   sole   devisee   is   the   proper 

Heard,  104  Ark.  23,  Ann.  Gas.  1914C,  party  defendant  to  a  suit  for  specific 

403,   42   L.   R.   A.    (N.    S.)    446,    148  performance    by    the    vendee.     The 

S.   W.   254;    and   cited  in    Waite   v.  text  is  cited  in  White  v.  Patterson, 

Stanley,  88  Vt.  407,  92  Atl.  633,  dis-  139  Pa.  St.  429,  21  Afl.  360;  Cross  v. 

Banting  opinion.  Bean,  83  Me.  62,  21  Atl.  752;  to  the 


§  368  EQUITY    JURISPRUDENCE.  688 

the  vendor  has  conveyed  the  land  to  a  third  person  who  is 
a  bona  fide  purchaser  for  vahie  without  notice  that  other 
equitable  principles  come  into  play,  and  cut  off  the  vendee's 
equitable  estate.^  It  follows  also,  as  a  necessary  conse- 
quence, that  the  vendee  is  entitled  to  any  improvement  or 
increment  in  the  value  of  the  land  after  the  conclusion  of 
the  contract,  and  must  himself  bear  any  and  all  accidental 
injuries,  losses,  or  wrongs  done  to  the  soil  by  the  operations 
of  nature,  or  by  tortious  third  persons  not  acting  under  the 
vendor.*  The  equitable  interest  of  the  vendor  is  correlative 
with  that  of  the  vendee;  his  beneficial  interest  in  the  land 
is  gone,  and  only  the  naked  legal  title  remains,  which  he 
holds  in  trust  for  the  vendee,  accompanied,  however,  by  a 
lien  upon  the  land  as  security  when  any  of  the  purchase 
price  remains  unpaid.  This  lien,  like  every  other  equitable 
lien,  is  not  an  interest  in  the  land,  is  neither  a  jtis  ad  rem  nor 
a  jus  in  re,  but  merely  an  encumbrance.  The  vendor  is  re- 
garded as  owner  of  the  purchase  price,  and  the  vendee,  be- 
fore actual  payment,  is  simply  a  trustee  of  the  purchase- 
money  for  him.g  Equity  carries  out  this  doctrine  to  its 
consequences.  Although  the  land  should  remain  in  the  pos- 
session and  in  the  legal  ownership  of  the  vendor,  yet  equity, 
in  administering  his  whole  property  and  assets,  looks  not 
upon  the  land  as  land, — for  that  has  gone  to  the  vendee, — 
but  looks  upon  the  money  which  has  taken  the  place  of  the 
land;  that  is,  so  far  as  the  land  is  a  representative  of  the 

effect  that  the  vendee's  estate  pre-  55   Ind.    App.    155,    102   N.   E.    160; 

vails   against  a  purchaser  from  the  Manning  v.  North  British  &  Mercan- 

vendor  with  notice.  tile  Ins.  Co.,  123  Mo.  App.  456,  99  S. 

§368,    (e)    The    text    is    cited    in  W.  1095;  Marion  v.  Wolcott,  68  N.  J. 

Coleman    v.    Dunton    (Me.),   58    Atl.  Eq.   20,   59    Atl.   242;    Woodward  v. 

430.  McCollum,   16  N.   D.  42,   111  N.  W. 

§368,    (f)    The   text   is   quoted   in  623. 

Speicher    v.    Lacy,    28    Okl.    541,    35  §368,    (g)    The   text   is   quoted  in 

L.  R.  A.   (N.  S.)   1066,  115  Pae.  271  Phillis   v.   Gross,  32  S.  D.  438,   143 

(vendee  has  equitable  title  to  grow-  N.  W.  373;  and  in  Taylor  v.  Inter- 

ing  crops) ;  in  Fouts  v.  Foudray,  31  state  Inv.  Co.,  75  Wash,  490,  135  Pae. 

Okl.   221,    Ann.  Cas.   1913E,   301,   38  240;  and  cited  in  Waite  v.  Stanley, 

L.  R.  A.   (N.  S.)   251,  120  Pae.  960;  88  Vt.  407,  92  AtL  633,  dissenting 

and  cited  in  Kimberlin  v.  Templeton,  opinion. 


089  REGARDS  THAT  DONE  WHICH  OUGHT  TO  BE   DONE.       §  368 

vendor's  property,  so  far  as  it  is  an  element  in  Ms  total 
assets,  equity  treats  it  as  money,  as  though  the  exehaM:«'e 
had  actually  been  made,  and  the  vendor  had  received  the 
money  and  transferred  the  land.  Although  the  legal  title 
to  the  land  would  still  descend  to  the  vendor's  heirs  upon 
his  death,  still  when  the  vendee  afterwards  completes  the 
contract,  takes  a  conveyance  of  the  legal  title  from  the  heirs, 
and  pays  the  price,  the  money,  being  all  the  time  an  element 
of  the  vendor's  assets,  and  being,  therefore,  all  the  time 
a  part  of  his  personal  and  not  of  his  real  property,  goes 
to  his  administrators  or  executors,  to  be  by  them  admin- 
istered upon  with  the  rest  of  his  personal  assets,  and  does 
not  go  to  the  heirs.^  ^ 

§  368,  2  The  following  are  a  few  oiat  of  the  very  many  authorities  by 
which  all  the  foregoing  propositions  of  the  text  are  fully  sustained :  Farrar 
V.  Winterton,  5  Beav.  1,  8,  per  Lord  Langdale,  M.  R.  A  testatrix  made 
a  will  devising  certain  real  estate.  After  making  the  will  she  entered  into 
a  contract  to  sell  the  same  land.  The  contract  was  not  fully  carried  into 
effect  by  conveyance  and  payment  of  the  price  until  after  her  death,  and 
the  only  question  presented  by  the  case  was,  whether  the  purchase-money 
thus  paid  belonged  to  the  executors  as  part  of  the  general  assets  of  her 
estate,  or  whether  it  belonged  to  the  devisees.  Lord  Langdale  said  (p.  8)  : 
"The  question  whether  the  devisees  can  have  any  interest  in  that  part  of 
the  purchase-money  which  was  unpaid  depends  on  the  rights  and  interests 
of  the  testatrix  at  the  time  of  her  death.  She  had  contracted  to  sell  her 
beneficial  interest.  In  equity,  she  had  alienated  the  land,  and  instead  of  her 
beneficial  interest  in  the  land,  she  had  acquired  a  title  to  the  purchase- 
money.  What  was  really  hers  in  right  and  equity  was  not  the  land,  but 
the  money,  of  which  alone  she  had  the  right  to  dispose;  and  though  she 
had  a  lien  upon  the  land,  and  might  have  refused  to  convey  until  the  money 
v/as  paid,  yet  that  lien  was  a  mere  security,  in  or  to  which  she  had  no  right 
or  interest  except  for  the  purpose  of  enabling  her  to  obtain  the  payment 
of  the  money.  The  beneficial  interest  in  the  land  which  she  had  devised 
was  not  at  her  disposition,  but  was  by  her  act  wholly  vested  in  another  at 
I  he  time  of  her  death."  This  opinion  is  a  very  clear  and  accurate  state- 
ment of  the  doctrine,  and  the  passage  which  I  have  italicized  shows  how 
erroneous  is  the  notion,  advanced  by  way  of  dictum  or  as  ground  of  deci- 
sion in   a  few  American  cases,  that  the  ecjuitable  estate  of  the  vendee 

§368,    (h)    The   last  statement   of       Estate,  134  Iowa,   603,   12  L.   E.  A 
the  text  is  cited  in  In  re  Bernhard's        (N.  S.)  1029,  112  N.  W.  86. 
1—44 


§  369  EQUITY    JURISPRUDENCE.  690 

§  369.  Sources  of  All  Equitable  Property. — In  the  fore- 
going description  is  shown  how,  in  one  particular  manner, 
by  the  operation  of  the  fundamental  principle,  the  equitable 
estate  in  land,  the  beneficial  property,  the  real  ownership, 
arises,  although  no  one  of  the  acts  or  events  has  taken  place 
which  the  common  law  so  imperatively  demands  as  a  pre- 
requisite to  the  existence  of  ownership  or  property.     This 

only  arises  when  and  as  far  as  he  makes  actual  payment  of  the  purchase 
price:  Haughwout  v.  Murphy,  22  N.  J.  Eq.  531.  "In  equity,  upon  an 
agreement  for  the  sale  of  lands,  the  contract  is  regarded  for  most  purposes 
as  if  specifically  executed.  The  purchaser  becomes  the  equitable  owner 
of  the  lands,  and  the  vendor  of  the  purchase-money.  After  the  contract, 
the  vendor  is  the  trustee  of  the  legal  estate  for  the  vendee :  Crawford  v. 
Bertholf,  1  N.  J.  Eq.  460;  Hoagland  v.  Latourette,  2  N.  J.  Eq.  254;  Huff- 
man V.  Hummer,  17  N.  J.  Eq.  264;  King  v.  Ruckman,  21  N.  J.  Eq.  599. 
Before  the  contract  is  executed  by  conveyance,  the  lands  are  devisable  by 
the  vendee,  and  descendible  to  his  heirs  as  real  estate ;  and  the  personal 
representatives  of  the  vendor  are  entitled  to  the  purchase-money :  Story's 
Eq.  Jur.,  §§  789,  790,  1212,  1213.  If  the  vendor  should  again  sell  the 
estate,  of  which,  by  the  first  contract,  he  is  only  seised  in  trust,  he  will 
be  considered  as  selling  it  for  the  benefit  of  the  person  for  whom,  by  the 
first  contract,  he  became  a  trustee,  and  therefore  liable  to  account;  or  the 
second  purchaser,  if  he  had  notice  at  the  time  of  his  purchase  of  the 
previous  contract,  will  be  compelled  to  convey  the  property  to  the  first 
purchaser:  Hoagland  v.  Latourette,  2  N.  J.  Eq.  254;  Downing  v.  Risley, 
15  N.  J.  Eq.  94.  A  purchaser  from  a  trustee,  with  notice  of  the  trust, 
stands  in  the  place  of  his  vendor,  and  is  as  much  a  trustee  as  he  was :  1 
Eq.  Cas.  Abr.  384;  Story  v.  Lord  Windsor,  2  Atk.  631.  The  cestui  que 
trust  may  follow  the  trust  property  in  the  hands  of  the  purchaser,  or  may 
resort  to  the  purchase-money  as  a  substitute  fund :  Murray  v.  Ballon,  1 
Johns.  Ch.  566,  581.  It  is  upon  the  principle  of  the  transmission  by  the 
contract  of  an  actual  equitable  estate,  and  the  impressing  of  a  trust  upon 
the  legal  estate  for  the  benefit  of  the  vendee,  that  the  doctrine  of  the 
specific  perfoi-mauce  of  contracts  for  the  sale  and  conveyance  of  land 
mainly  dej^ends."  See,  also,  Fletcher  v.  Ashburner,  1  Brown  Ch.  497,  1 
Lead.  Cas.  Eq.,  4th  Am.  ed.,  1118,  1123,  1157;  Yates  v.  Compton,  2  P. 
Wms.  308;  Green  v.  Smith,  1  Atk.  572,  573;  Trelawny  v.  Booth,  2  Atk. 
307;  Pollexfen  v.  Moore,  3  Atk.  273;  Maekreth  v.  Symmons,  15  Ves.  329, 
336;  Rose  v.  Cunyngbame,  11  Ves.  554;  Kirkman  v.  Miles,  13  Ves.  338; 
Peters  v.  Beverly,  10  Pet.  532,  533;  Taylor  v.  Benham,  5  How.  234; 
Champion  v.  Brown,  6  Johns.  Ch.  403,  10  Am.  Dec.  343;  Wood  v.  Cone, 
7  Paige,  472;  Wood  v.  Keyes,  8  Paige,  365;  Worrall  v.  Munn,  38  N.  Y. 


691 


KEGARDS  THAT  DONE  WHICH  OUGHT  TO  BE  DONE. 


369 


instance  is  given  simply  as  an  example.  An  analysis  of  all 
the  different  equitable  estates,  property,  and  interests  anal- 
ogous to  property,  either  real  or  personal,  known  to  the 
equity  jurisprudence  will  disclose  the  fact  that  nearly  all, 
if  not  absolutely  all,  arise  in  the  same  general  manner,  by 

139;  Thompson  v.  Smith,  63  N.  Y.  301,  303;  Seaman  v.  Van  Rensselaer, 
10  Barb.  86 ;  Kerr  v.  Day,  14  Pa.  St.  112,  53  Am.  Dec.  526 ;  Robb  v.  Mann, 
1  Jones,  300,  51  Am.  Dec.  551;  Richter  v.  Selin,  8  Serg.  &  R.  425,  440; 
Brewer  v.  Herbert,  30  Md.  301,  96  Am.  Dec.  582 ;  Lindsay  v.  Pleasants,  4 
Ired.  Eq.  321;  Phillips  v.  Sylvester,  L.  R.  8  Ch.  173,  176,  per  Lord 
Selborne.* 


§368,  (1)  That  the  interest  of 
the  vendor  in  the  purchase-money 
passes  to  his  personal  representa- 
tive, who  is  the  proper  plaintiff  in  a 
suit  for  specific  performance,  see 
Solt  V.  Anderson  (Neb.),  93  N.  W. 
205;  Bender  v.  Luckenback,  162  Pa. 
St.  18,  29  Atl.  295,  296;  Williams  v. 
Haddock,  145  N.  Y.  144,  39  N.  E. 
825.  In  Clapp  v.  Tower,  11  N.  D. 
556,  93  N.  W.  862,  it  was  held  that 
when  the  executors  have  canceled 
the  contract  of  sale  for  default  of 
the  purchaser,  and  thus  regained 
title,  they  may  sell  and  convey  the 
land  and  account  to  the  court  of 
their  appointment  for  the  proceeds 
as  personalty,  and  the  title  so  con- 
veyed is  good  as  against  the  heirs 
of  the  vendor  claiming  title  by  suc- 
cession. The  equitable  rights  of  the 
next  of  kin  of  the  vendor  are  not 
defeated  where  the  vendee,  by  his 
laches,  after  the  death  of  the  vendor, 
loses  his  right  to  specific  perform- 
ance, provided  the  contract  was  en- 
forceable in  equity  at  the  death  of 
the  vendor;  Keep  v.  Miller,  42  N.  J. 
Eq.  100,  6  Atl.  495. 

The  equitable  estate  of  the  ven- 
dee will  pass  by  his  deed  purporting 
to  convey  the  land.  Wilson  v.  Fair- 
child,  45  Minn.  203,  47  N.  W.  642. 

Since   the   vendee   is   a   trustee   of 


the  purchase-money,  the  statute  of 
limitations  does  not  run  against  an 
action  to  enforce  the  vendor's  lien 
until  the  trust  relationship  is  ter- 
minated. Williams  v.  Young  (Ark.), 
71  S.  W.  669. 

The  assertion  by  a  tenant  of  the 
right  to  have  a  contract  of  purchase 
specifically  enforced  against  bis  land- 
lord, depending  as  it  does  upon  the 
existence  of  the  vendee's  equitable 
estate,  involves  a  denial  of  the  land- 
lord's title,  within  the  meaning  of 
the  rule  by  which  the  tenant  is  es- 
topped to  deny  such  title.  Davis  v. 
Williams,  130  Ala.  530,  89  Am.  St. 
Rep.  55,  54  L.  R.  A.  749,  30  South. 
488. 

That  the  purchaser  is  entitled  to  a 
homestead  in  the  land,  subject  to  the 
vendor's  lien  for  the  unpaid  pur- 
chase-money, see  Dortch  v.  Benton, 
98  N.  C.  190,  2  Am.  St.  Rep.  331,  3 
S.  E.  638. 

See,  in  general,  on  the  subject  of 
this  paragraph,  Marvin  v.  Stimpson, 
23  Colo.  174,  46  Pac.  673,  quoting  the 
text;  Whittier  v.  Stege,  61  Cal.  238. 
For  further  treatment  of  the  sub- 
ject, and  special  rules  arising  from 
the  relationship  of  vendor  and  ven- 
dee in  equity,  see  post,  §§  1161, 1163, 
1260,  1261;  Pom.  Eq.  Rem.,  chapter 
on  Specific  Performances. 


§  3G9  EQUITY    JURISPRUDENCE.  692 

tlie  operation  upon  the  particular  circumstances  of  the  same 
fundamental  principle,  and  with  the  same  general  results.* 
Thus  an  assignment  or  conveyance  of  that  peculiar  interest 
in  land  called  a  '' possibility"  is  at  the  common  law  a  mere 
nullity,  so  far  at  least  as  it  attempted  to  create  or  transfer 
any  ownership.  At  the  time  when  the  instrument  is  exe- 
cuted there  is  no  present,  certain,  vested  property  right  in 
the  assignor  upon  which  its  granting  language  can  attach; 
and  if  at  some  future  time  the  contingency  happens,  the 
possibility  changes  into  a  certainty,  and  a  property  right 
becomes  vested  in  the  assignor,  the  arbitrary  and  technical 
rules  of  the  common  law  concerning  conveyances  of  real 
estate  did  not  allow  the  words  of  assignment  to  act  upon 
this  newly  arisen  and  vested  interest  so  as  to  transfer  it  to 
the  assignee.  The  effect  of  such  a  transaction  in  equity 
is  wholly  different.  Although  when  the  assignment  is  exe- 
cuted there  is  no  present  certain  right  of  property  in  the 
assignor  which  can  be  transferred,  yet  in  the  view  of  equity 
the  instrument  operates  at  least  as  an  executory  agreement 
on  the  part  of  the  assignor,  and  creates  a  present  obligation 
resting  upon  him  with  reference  to  the  land,  which  obliga- 
tion, though  noiu  contingent,  may  in  future  become  absolute. 
If,  therefore,  at  a  subsequent  time  the  contingency  happens, 
and  a  certain  present  property  thereupon  vests  in  the  as- 
signor, the  obligation,  now  become  absolute,  at  once  attaches 
to  it.  By  virtue  of  that  obligation  this  property  or  estate 
of  the  assignor  ought  to  be  conveyed  to  the  assignee  by  an 
efficient  legal  assurance ;  and  equity,  regarding  what  ought 
to  be  done  as  done,  treats  the  property  as  transferred,  and 
the  assignee  as  vested  with  the  complete  beneficial  owner- 
ship. In  this  manner  equity,  in  pursuance  of  the  funda- 
mental principle  under  discussion,  gives  full  effect  to  an  as- 
signment or  conveyance  of  a  "possibility,"  and  makes  it  the 
source  of  an  equitable  property  in  land.  Again,  a  sale  of  a 
chattel  not  yet  in  existence,  or  not  yet  in  the  possession  of 

§369,    (a)    The    text    is    cited  .in       App.   447,   54   Am.   St.   Rep.   532,  40 
Sourwine  v.  Supreme  Lodge,  12  Ind.       N.  E.  04(5. 


693  EEGARDS  THAT  DONE  WHICH  OUGHT  TO  BE  DONE,       §  369 

the  vendor,  but  to  be  acquired  in  future,  passes  no  property 
in  the  thing  to  the  buyer  at  law,  even  when  it  subsequently 
comes  into  the  seller's  ownership  and  possession.  Such 
contract  gives  to  the  buyer  a  right  of  action  for  damages,  but 
no  property;  he  can  maintain  an  action  of  assumpsit,  but 
not  replevin,  or  trover,  or  trespass.^  But  as  such  a  con- 
tract, although  using  language  in  prcBsenti,  is,  in  effect,  an 
executory  agreement,  and  creates  a  definite  obligation  upon 
the  vendor,  equity,  upon  the  same  principle  and  in  the  same 
manner  as  last  above  explained,  regards  it  as  an  assign- 
ment ;  and  when  the  thing  comes  into  existence,  or  into  the 
ownership  of  the  seller,  the  real,  beneficial  property  in  it  is 
at  once  transferred  to  and  vested  in  the  buyer,  and  he  is  the 
equitable  owner.  It  is  in  consequence  of  the  same  prin- 
ciple that  an  assignment  of  a  thing  in  action,  completely 
nugatory  at  the  common  law  as  a  transfer,  and  indeed 
opposed  to  the  ancient  theories  of  the  law,  is  regr.rded  in 
equity  as  clothing  the  assignee  with  all  the  rights  of  his 
assignor.  These  illustrations  have  all  been  taken  from 
express  contracts.  The  principle  also  extends  to  cases 
where  the  legal  relations  arise  from  conveyances  inter  vivos, 
or  wills  in  which  one  of  the  parties  is  a  volunteer,  and  even 
to  transactions  in  which  the  legal  relations  arise  from  no 
such  definite  cause,  but  are  merely  implied  from  the  prior 
conduct  of  the  parties.  In  all  express  active  trusts  to 
convey  the  corpus  of  the  trust  property  directly  to  the  cestui 
que  trust,  and  in  all  express  passive  trusts  to  hold  the  land 
for  the  use  of  the  cestui  que  trust,  created  either  by  deed 
or  by  will,  an  equity  exists  between  the  beneficiary  and  the 
trustee,  an  obligation  rests  upon  the  latter,  and  this  equity 
is  treated  as  worked  out,  the  obligation  as  performed,  and 
the  beneficiary  as  clothed  with  an  equitable  estate,  depend- 
ing in  kind,  quality,  and  degree  upon  the  special  provisions 
of  the  instrument.     Finally,  in  tinists  arising  by  operation 

§  369,  1  I  am  stating,  of  course,  the  general  rule,  and  need  not  describe 
the  special  excepted  case  of  things  having  a  "potential  existence,"  such  as 
an  expectal  ofop,  etc. 


§  370  EQUITY    JURISPRUDENCE.  694 

of  law,  implied,  constructive,  and  resulting  trusts,  the  equity 
subsisting  between  the  cestui  que  trust  and  the  holder  of 
the  legal  title,  and  the  obligation  resting  upon  the  latter, 
are  treated  as  though  worked  out,  by  regarding  the  bene- 
ficiary as  vested  with  an  equitable  but  no  less  real  owner- 
ship.^ 

§  370.  The  Equitable  Estates  Derived  from  This  Prin-' 
ciple. — Having  thus  examined  the  meaning  of  the  grand 
principle, — equity  regards  that  as  done  which  ought  to  be 
done, — and  explained  the  rationale  of  its  operation  upon 
equity  jurisprudence  in  giving  rise  to  various  kinds  of  equi- 
table property  and  rights  analogous  to  property,  I  shall 
finish  the  discussion  by  very  briefly  enumerating  the  most 
important  of  these  equitable  estates,  interests,  and  prop- 
erty rights  which  are  the  immediate  effects  of  the  principle. 
As  has  already  been  shown,  the  maxim  applies  whenever  an 
equity  exists  between  two  determinate  parties  with  refer- 
ence to  some  subject-matter;  that  is,  an  obligation  rests 
upon  one,  and  a  corresponding  right  is  held  by  another.^ 
Such  a  right  and  duty  may  arise  from  a  contract  between 
the  parties,  and  by  the  doctrines  of  equity  a  contract  must 
be  made  upon  an  actual  valuable  consideration,  in  order 
that  any  equitable  right  and  obligation  may  be  created  by 
it;i  or  from  the  dispositions  contained  in  a  deed  or  will, 
where  the  party  clothed  with  the  right  is  a  volunteer;  or 

§  370,  1  A  seal  alone  is  not  enongh  to  show  a  consideration  in  equity : 
Jefferys  v.  Jefferys,  Craig  &  P.  138;  Hervey  v.  Audland,  14  Sim.  531; 
Meek  v.  Kettlewell,  1  Phill.  Ch.  342,  1  Hare,  464;  Ord  v.  Johnston,  1  Jur., 
N.  S.  1063;  Wycherley  v.  Wyeheiley,  2  Eden,  177;  Estate  of  Webb,  49 
Cal.  541,  545;  Minturn  v.  Seymour,  4  Johns.  Ch.  497;  Burling  v.  King, 
66  Barb.  633;  Shepherd  v.  Shepherd,  1  Md.  Ch.  244;  Vasser  v.  Vasser,  23 
Miss.  378;  Kekewich  v.  Manning,  1  De  Gex,  M.  &  G.  176;  Jones  v.  Lock, 
L.  R.  1  Ch.  25;  Wason  v.  Colburn,  99  Mass.  342;  Pomeroy  on  Specific 
Performance,  §  57,  notes  2,  3. 

§369,    (b)    The   last   statement   of  Sourwine  v.  Supreme  Lodge,  ]2  Tnd. 

the  text  is  cited  in  Heinrich  v.  Hcin-  App.   447,   54  Am.   St.   Rep,   532,   40 

rich,  2  Cal.  App.  479,  84  Pac.  326.  N.  E.  646. 

§370,   (a)     The    text    is    cited    in 


695  REGAIiDS  THAT  DONE   WHICH  OUGHT  TO  BE   DONE.       §  371 

from  the  conduct  and  relations  of  the  parties,  where  the 
equity  neither  grows  out  of  any  express  contract,  convey- 
ance, or  will,  as  in  trusts  arising  solely  by  operation  of 
law.b  The  various  estates  and  interests  resulting  from  the 
maxim  might  therefore  be  arranged  in  classes  according 
to  this  threefold  division;  but  it  will  be  much  more  con- 
venient to  state  them  under  their  accepted  names  and  titles 
as  separate  species  of  equitable  property. 

§  371.  Conversion. — One  of  the  most  direct  and  evident 
results  of  the  principle  is  the  equitable  property  which 
arises  from  the  doctrine  of  conversion, — when  real  estate 
is  treated  by  equity  as  personal  property,  or  personal  estate 
as  real  property;  land  as  money,  or  money  as  land, — ''noth- 
ing is  better  established  than  this  principle,  that  money 
directed  to  be  employed  in  the  purchase  of  land,  and  land 
directed  to  be  sold  and  turned  into  money,  are  to  be  con- 
sidered as  that  species  of  property  into  which  they  are 
directed  to  be  converted;  and  this  in  whatever  manner  the 
direction  is  given,  whether  by  will,  by  way  of  contract, 
marriage  articles,  settlement,  or  otherwise,  or  whether  the 
money  is  actually  deposited,  or  only  covenanted  to  be  paid ; 
whether  the  land  is  actually  conveyed,  or  only  agreed  to  be 
conveyed ;  the  owner  of  the  fund  or  the  contracting  parties 
may  make  land  money  or  money  land.  "^  A  conversion 
may  thus  take  place  where,  by  a  will,  a  deed,  or  family  set- 
tlement, land  is  actually  devised  or  conveyed,  or  money 
or  securities  are  actually  assigned  to  trustees,  with  direc- 
tions in  the  one  case  to  sell  the  land,  and  pay  over  the  pro- 
ceeds to  the  beneficiary,  and  in  the  other  to  invest  the  fund 
in  the  purchase  of  the  land  to  be  then  conveyed  to  him ;  or 
it  may  in  like  manner  take  place  where,  by  marriage  arti- 
cles or  other  executory  agreement,  land  is  covenanted  to 

§  371,  I  Per  Sir  Thomas  Sewell,  M.  R.,  in  Fletcher  v.  Ashburner,  1 
Brown  Ch.  497,  1  Lead.  Cas.  Eq.,  4th  Am.  ed.,  1118,  1120. 

I-'^TO,  (b)  The  text  is  cited  to  this  effect  m  Heinrich  v.  Heinrich,  2  Cal. 
App.  479,  84  Pac.  326. 


§  372  EQUITY    JURISPRUDENCE.  696 

be  conveyed, -or  money  is  covenanted  to  be  assigned,  in  like 
manner  and  for  like  purposes.  The  effect  of  the  conver- 
sion is  a  direct  consequence  of  the  principle  in  question. 
Personal  estate  becomes,  to  all  intents  and  purposes,  in 
the  view  of  equity,  real,  and  real  estate  personal.  Money 
directed  to  be  invested  in  land  descends  to  the  heir  of  the 
original  beneficiary,  or  passes  under  a  general  description 
of  real  property  in  his  will,  while  land  directed  to  be  con- 
verted into  money  goes  to  his  personal  representatives,  or 
is  included  in  a  residuary  bequest  of  his  '* personal  prop- 
erty." These  are  some  of  the  incidents  of  a  conversion, 
and  are  sufficient  at  present  to  illustrate  its  nature  and 
results.2  a 

§  372.  Contracts  for  the  Purchase  and  Sale  of  Lands. — 
Another  immediate  and  evident  consequence  of  the  prin- 
ciple is  the  equitable  property  created  by  mere  agreements 

§  371,  2  Fletcher  v.  Ashburner,  1  Brown  Ch.  497,  1  Lead.  Cas.  Eq.,  4th 
Am.  ed.,  1118,  1123,  1157;  Kettleby  v.  Atwood,  1  Vern.  298;  Crabtree  v. 
Bramble,  3  Atk.  680;  Babington  v.  Greenwood,  1  P.  Wms.  532;  Lechmere 
V.  Earl  of  Carlisle,  3  P.  Wms.  211;  Guidot  v.  Guidot,  3  Atk.  254;  Sweet- 
apple  V.  Bindon,  2  Vern.  536;  Wheldale  v.  Partridge,  5  Ves.  396,  8  Ves. 
227;  Stead  v.  Newdigate,  2  Mer.  521;  Elliott  v.  Fisher,  12  Sim.  505;  Har- 
court  V.  Seymour,  2  Sim.,  N.  S.,  45;  In  re  Pedder,  5  De  Gex,  M.  &  G. 
890;  Ashby  v.  Palmer,  1  Mer.  296;  Craig  v.  Leslie,  3  Wheat.  563,  577,  and 
cases  cited;  Dunseomb  v.  Dunscomb,  1  Johns.  Ch.  508,  7  Am.  Dec.  504; 
Lorillard  v.  Coster,  5  Paige,  173,  218;  Gott  v.  Cook,  7  Paige,  523,  534; 
Kane  v.  Gott,  24  Wend.  641,  660,  35  Am.  Dec.  641;  Allison  v.  Wilson's 
Ex'r,  13  Serg.  &  R.  330,  332;  Morrow  v.  Brenizir,  2  Rawle,  185,  189; 
Hurtt  V.  Fisher,  1  Har.  &  G.  88,  96;  Leadenham  v.  Nicholson,  1  Har.  & 
G.  267,  277;  Siter  v.  McClanachan,  2  Gratt.  280;  Pratt  v.  Taliaferro,  3 
Leigh,  419,  421;  Tazewell  v.  Smith's  Adm'rs,  1  Rand.  313,  320,  10  Am. 
Dec.  533;  Conunonwealth  v.  Martin's  Ex'r,  5  Munf.  117,  121;  Smith  v. 
McCraiy,  3  Ired.  Eq.  204,  207;  Peter  v.  Beverly,  10  Pet.  534,  563;  Taylor 
V,  Benham,  5  How.  234,  269. 

§371,    (a)    The   text   is   quoted   in  315   (conversion  by   direction  to   in- 

Geiger  V.  Bitzer,  80  Ohio,  65,  17  Ann.  vest   money    in   land);    Gilbrcath    v. 

Cas.  151,  22  L.  R.  A.  (N.  S.)  285,  88  Cosgrove,  193  Mo.  App.  419, 185  S.  W. 

N.  E.  134;   and  cited  in  In  re  Thin-  1181. 
phy's   Estate,    147    Cal.   95,   81   Pac. 


697  REGARDS  THAT  DONE  WHICH  OUGHT  TO  BE  DONE.       §  373 

to  purchase  and  sell  lands.  If  the  contract  is  made  upon 
an  actual  valuable  consideration,  and  complies  in  other  re- 
spects with  the  requisites  prescribed  by  equity,  then,  as 
soon  as  it  is  executed  and  delivered,  the  vendee  acquires 
an  equitable  estate  in  the  lands  subject  simply  to  a  lien  in 
favor  of  the  seller  as  security  for  payment  of  the  price,* 
while  the  vendor  becomes  equitable  owner  of  the  purchase- 
money.  There  is  in  this  case,  as  in  the  last,  an  equitable 
conversion;  the  vendee's  interest  is  at  once  converted  into 
real  property  with  all  its  features  and  incidents,  while  the 
vendor's  interest  is,  to  the  same  extent,  personal  estate. ^  ^ 

§  373.  Assignments  of  Possibilities ;  Sales  of  Chattels  to 
be  Acquired  in  the  Future;  Assignments  of  Things  in  Ac- 
tion; Equitable  Assignments  of  Moneys;  and  Equitable 
Liens. — The  operation  of  the  grand  principle  that  equity 
regards  that  as  done  which  in  good  conscience  ought  to  be 
done  is  perhaps  less  immediate  and  evident  in  producing 
these  species  of  equitable  propert}'-,  or  interest,  but  is  no 
less  real  and  certain.  In  all  these  instances  an  equity  exists 
between  the  two  parties,  growing  either  out  of  an  assi.gn- 
ment  which  at  law  creates  or  transfers  no  property  right, 
either  present  or  future,  in  the  subject-matter,  or  out  of 

§  372,  1  Fletcher  v.  Ashburner,  1  Lead.  Cas.  Eq.,  4th  Am.  ed.,  1118, 
1123,  1157,  in  notes;  Burgess  v.  Wheate,  1  W.  Black.  123,  129,  1  Eden, 
177;  Harford  v.  Furrier,  1  Madd.  532;  Paine  v.  Meller,  6  Ves.  349;  Raw- 
lins V.  Burgis,  2  Ves.  &  B.  387;  Revell  v.  Hussey,  2  Ball.  &  B.  287;  Hamp- 
son  V.  Edelen,  2  Har.  &  J.  66,  3  Am.  Dec.  530;  Siter's  Appeal,  26  Pa.  St. 
180;  Jackson  v.  Small,  34  Ind.  241;  Lewis  v.  Smith,  9  N.  Y.  502,  510, 
61  Am.  Dec.  706;  Moyer  v.  Hinman,  13  N.  Y.  180;  Thomson  v.  Smith,, 
63  N.  Y.  301,  303 ;  Moore  v.  Buitows,  34  Barb.  173 ;  Adams  v.  Green,  34 
Barb.  176;  Schroppel  v.  Hopper,  40  Barb.  425;  and  see  ante,  §  368,  note. 

§372,  (a)   The  text  is  cited,  as  to  99  S.  W.  1085   (loss  by  fire  falls  on 

the  vendor's  lien,  in  Peay  v.  Seiglcr,  vendee) ;  Jersey  City  v.  Jersey  City 

48  S.  C.  496,  59  Am.  St.  Rep.  731,  26  Water  Supply  Co.,  70  N.  J.  Eq.  514, 

S.    E.    885;    Sehenck    v.    Wicks,    23  61  Atl.  714;  Sanderson  v,  Wellsford, 

Utah,  576,  65  Pac.  732.  53    Tex.    Civ.    App.   637,    116    S.    W. 

§372,  (b)  This  paragraph  is  cited  382;  Ainger  v.  White's  Adm'r,  85  Vt. 

in  Manning  v.  North  British  &  Mer-  446,  82  Atl.  666. 
cantile  Ins.   Co.,   123   Mo.   App.  456, 


§  373  EQUITY    JUMSPEUDENCB.  698 

an  executory  contract  which  at  law  only  creates  a  personal 
demand, — a  mere  right  of  action, — and  equity,  laying  hold 
of  the  obligation  thus  assumed  by  or  imposed  upon  one 
of  the  parties,  transforms  it,  so  to  speak,  upon  the  hap- 
pening of  the  contingent  event  contemplated,  into  the  real, 
beneficial,  equitable  ownership,  property,  or  interest,  of 
whatever  nature  and  extent,  absolute  or  qualified,  it  may 
be,  according  to  the  terms  of  the  instrument.  Thus  the 
assignee  of  a  possibility  becomes  equitable  owner  of  the 
estate  when  the  event  takes  place;  the  vendee  of  chattels 
to  be  acquired  becomes  their  equitable  owner ;  the  equitable 
assignee  of  a  fund  becomes  the  real  owner  of  the  money; 
and  from  a  mortgage  or  other  transfer  inoperative  as  such 
at  law,  or  from  the  mere  executory  stipulations  of  an  agree^ 
ment,  complete  equitable  liens  upon  specific  lands,  chattels, 
or  funds  are  created.^  «• 

§  373,  1  For  authorities  illustrating  each  of  these  species,  see  ante, 
§  369,  and  notes  thereunder.  In  describing  equitable  liens,  Currey,  C.  J., 
in  Daggett  v.  Rankin,  31  Cal.  321,  326,  used  the  following  language :  "The 
doctrine  seems  to  be  well  established  that  an  agreement  in  writing  to  give 
a  mortgage,  or  a  mortgage  defectively  executed,  or  an  imperfect  attempt 
to  create  a  mortgage,  or  to  appropriate  specific  property  to  the  discharge 
of  a  particular  debt,  will  create  a  mortgage  in  equity,  or  a  specific 
[equitable]  lien  on  the  property  intended  to  be  mortgaged.  The  maxim 
of  equity  upon  which  this  doctrine  rests  is,  that  equity  looks  upon  things 
agreed  to  be  done  as  actually  perfoimed;  the  true  meaning  of  which  is, 
that  equity  will  treat  the  subject-matter,  as  to  collateral  consequences  and 
incidents,  in  the  same  manner  as  if  the  final  acts,  contemplated  by  the 
parties,  had  been  executed  exactly  as  they  ought  to  have  been." 

§  373,    (a)    As   to    equitable   liens,  comb  Co.  v.  Glasgow  Cooperage  Co., 

see  post,  §  1235;  Howard  v.  Delgado  173  Ky.  5,  19,  191  S.  W.  275  (mort- 

County,  121  Fed.  26;  Lynch  v.  Moser,  gage  of  future  property);  Klauster- 

72  Conn.  714,  46  Atl.  153  (agreement  meyer    v.    Cleveland    Trust    Co.,    89 

to    give    a    mortgage) ;    Shipman    v.  Ohio   St.   142,   105   N.  E.  278    (equi- 

Lord,  58  N.  J.  Eq.  380,  44  Atl.  215,  table   lien   arising  from   contract  to 

46  Atl.  1101;  National  Bank  of  De-  pledge   securities).    As   to    equitable 

posit  V.   Rogers,   166   N.   Y.   380,   59  assignment     of    a     fund,     see     post, 

N.  E.  922.     See,  also,  In  re  Imperial  §§  1280-1284;  Preston  v.  Kussell,  71 

Textile  Co.,  239  Fed.  775  (assignment  Vt.  151,  44  Atl.  115. 
of    future    accounts)  j    Moulder-Hol- 


699  REGARDS  THAT  DONE   WHICH  OUGHT  TO  BE  DONE.       §  374 

§  374.  Express  Trusts.^ — In  everj^  particular  instance  of 
that  vast  section  of  peculiar  ownerships  to  which  the  gen- 
eric name  of  ** Trusts"  is  given,  where  the  legal  title  to 
the  subject-matter  is  vested  in  one  person,  and  the  equitable 
title  is  held  by  another,  this  equitable  property  is  the  direct 
and  plain  effect  of  the  principle  which  we  are  discussing. 
The  truth  of  this  statement  is  undeniable  in  all  those  cases 
of  express  trusts  which  thus  divide  the  total  ownership 
into  the  legal  estate  of  the  trustee,  and  the  equitable  estate 
of  the  cestui  que  trust.  In  express  passive  trusts,  a  naked 
legal  title  remains  in  the  trustee,  but  the  equitable  and  real 
property,  with  all  its  features  and  incidents,  belongs  to  the 
beneficiar}^,  so  that  he  is  treated  in  every  sense  as  the  true 
owner.  Where  land  is  given  to  a  trustee  merely  upon  the 
trust  to  convey  the  same  to  a  specified  beneficiary,  the  prin- 
ciple applies  with  equal  force,  and  the  cestui  que  trust  is 
clothed  with  the  equitable  property,  although  the  directions 
of  the  trust  have  not  yet  been  carried  into  effect  by  an 
actual  transfer  to  him  of  the  legal  estate.  In  another  class 
of  express  active  trusts,  where  by  the  terms  of  the  creation 
the  possession  of  the  subject-matter,  and  the  control,  man- 
agement, and  disposition  of  it  during  the  time  for  which  the 
trust  is  to  last,  are  given  to  the  trustee,  to  be  exercised  by 
him  according  to  his  own  discretion,  no  such  equitable  prop- 
erty passes  to  the  cestui  que  trust,  and  his  right  for  the 
time  being  is  only  a  thing  in  action,  not  an  estate ;  no  obli- 
gation rests  upon  the  trustee  as  a  part  of  his  fiduciary  duty 
to  make  a  transfer  of  the  title  to  the  beneficiary;  the 
*' ought"  required  by  the  maxim  is  not  present,  and  the 
principle  itself  does  not  apply  as  long,  at  least,  as  the  trust 
remains  alive.^ 

§  374,  1  For  illustrations,  see  ante,  §  153,  and  notes.  It  should  be  re- 
membered that,  according  to  the  legislation  of  several  states,  in  the  only 
express  trusts  of  land  which  are  permitted  by  the  statutes,  it  is  enacted 
that  all  estate  and  title,  legal  and  equitable,  shall  be  vested  in  the  trustee, 

§374,  (a)  Sections  374-376  are  Davidson,  97  Fed.  696,  38  C.  C.  A. 
cited    in    Savings    &    Loan    Soc.    v.       3C5. 


§  ^75  EQUITY    JURISPRUDENCE.  700 

§  375.  Trusts  Arising  by  Operation  of  Law. — The  prin- 
ciple is  no  less  truly  and  directly  the  source  of  the  equitable 
ownership  regarded  as  held  by  the  beneficiary  in  all  trusts 
which  arise  by  operation  of  law,  resulting,  implied,  or  con- 
structive. Although  the  fiduciary  relation  is  not  created 
by  the  terms  of  any  direct  conveyance,  devise,  assignment, 
or  agreement,  yet  by  the  settled  doctrines  of  the  equity 
jurisprudence,  an  equity  exists  between  the  parties  which 
is  treated  as  worked  out;  an  obligation  to  convey  the  sub- 
ject-matter rests  upon  the  holder  of  the  legal  title,  which 
is  treated  as  though  performed.  Some  modern  judges  of 
great  learning  and  ability  have  said  that  the  relations  com- 
monly known  as  ''constructive"  or  ''resulting"  trusts  are 
only  trusts  suh  modo,  are  called  trusts  only  by  way  of  anal- 
ogy, and  for  want  of  a  better  and  more  distinctive  name. 
Even  if  this  criticism  upon  the  ordinary  nomenclature  be 
well  founded,  it  does  not  deny,  and  was  not  intended  to  deny, 
the  existence  of  the  real,  beneficial,  equitable  property  in 
the  beneficiary.  He  is  admitted  to  be  the  equitable  owner, 
with  all  the  incidents  of  ownership,  although  the  legal  title 
is  vested  in  another  person.  The  beneficiary  may  not  have 
anything  which  the  law  requires  as  a  "title,"  he  may  even 
be  without  any  written  evidence  of  his  right,  his  proprietor- 
ship may  rest  wholly  upon  acts  and  words,  but  still  he  is 
the  equitable  owner  because  equity  treats  that  as  done  which 
in  good  conscience  ought  to  be  done.i  * 

and  that  the  cestui  que  trust  shall  have  no  estate,  but  only  a  right  of  ac- 
tion to  compel  a  faithful  perfonnance  by  the  trustee. 

§  375^  I  See  illustrations,  ante,  §  155,  and  notes.  The  ojDinion  of  the 
lord  chancellor,  Lord  St.  Leonards,  will  apply  to  all  such  cases.  A  man 
had  conveyed  his  land  in  fee  by  a  deed  which  was  fraudulent  as  against 
himself,  so  that  he  could  have  procured  the  deed  to  be  set  aside  in  equity; 
still  the  legal  estate  was  wholly  conveyed  to  the  grantee.  Afterwards  the 
grantor  devised  the  same  land,  and  the  question  was,  What  interest  did  he 
have  in  the  land,  and  was  it  devisable'?     See  Stump  v.  Gaby,  2  De  Gex,  M. 

§  375,  (a)  This  paragraph  is  quoted       in  Heinrich  v.  Heinrieh,  2  Cal.  App. 
in   full   in   Ferryman   v.   Woodward,       479,  84  Pae.  326. 
37  Okl.  792,  133  Fac.  245;  and  cited 


701  REGARDS  THAT  DONE   WHICH  OUGHT  TO  BE  DONE.       §  376 

§  376.  Mortgage;  Equity  of  Redemption. — There  remains 
but  one  important  equital)le  estate  to  be  considered,  that 
of  the  mortgagor,  called  his  equity  of  redemption;  and  a 
careful  analysis  will  show  that  the  existence  of  this  as  a 
part  of  equity  jurisprudence  can  be  accounted  for  upon  no 
principle  whatever  other  than  the  one  under  discussion. 
By  a  mortgage  in  fee  the  legal  estate  is  vested  in  the  mort- 
gagee, and  upon  the  condition  being  broken,  this  legal  estate 
becomes  absolute.  Nevertheless  an  equity  with  respect  to 
the  land  exists  between  the  two  parties,  a  right  in  the  mort- 
gagor and  an  obligation  upon  the  mortgagee.  ''Equity  of 
redemption"  is  only  an  abbreviation  of  "right  in  equity 
to  have  a  redemption. ' '  The  mortgagor  is  clothed  with  this 
equitable  right  to  a  redemption,  or  in  other  words,  this 
right  to  compel  a  reconveyance  and  redelivery  of  posses- 
sion at  any  time  upon  payment  of  the  debt  secured  and 
interest,  while  the  corresponding  obligation  rests  on  the 
mortgagee  to  make  the  conveyance  and  delivery.  Upon  thy 
universal  principle  of  treating  everything  as  done  which 
in  good  conscience  ought  to  be  done,  equity  regards  this 
right  of  the  mortgagor,  not  as  a  mere  thing  in  action,  but 
as  property,  as  an  estate,  as  the  real,  beneficial  ownership 
of  the  land,  subject,  however,  to  the  lien  created  by  the 

&  G.  623,  630.  Lord  St.  Leonards  said:  "What,  then,  is  the  interest  of  a 
party  in  an  estate  which  he  has  conveyed  under  circumstances  which  would 
give  a  right  in  this  court  to  have  the  deed  set  aside?  In  the  view  of  this 
court  he  remains  the  owner,  and  the  consequence  is,  that  he  may  devise 
the  estate,  not  as  a  legal  estate,  but  as  an  equitable  estate.  The  testator 
therefore  had  a  devisable  interest."  Now,  where,  as  in  this  case,  the  legal 
title  had  vested  in  the  grantee,  upon  what  principle  was  the  grantor  still 
regarded  as  the  equitable  owner,  with  all  the  incidents  of  the  beneficial 
ownership?  Plainly  because  from  the  fraud  an  equity  with  respect  to  the 
land  existed  between  the  grantee  and  the  grantor,  and  an  obligation  rested 
upon  the  former  to  reconvey.  Since  the  grantee  in  good  conscience  ought 
to  reconvey,  equity  treated  the  parties  as  though  this  had  been  done,  and 
the  grantor  as  holding  the  equitable  property.  Upon  the  same  principle  is 
based  the  notion  of  equitable  property  in  the  beneficiary  in  all  constructive 
and  other  implied  ti-usts.  See,  also,  Gresley  v.  Mousley,  4  De  Gex  &  J.  78 ; 
Uppington  v.  Bullen,  2  Dru.  &  War.  184. 


§  377  EQUITY    JURISPRUDENCE.  702 

mortgage  as  a  security  to  the  mortgagee  for  the  payment 
of  his  demand.  The  mortgagor's  equitable  property  is,  in 
this  respect,  exactly  analogous  to  the  equitable  estate  of  a 
vendee  subject  to  a  lien  in  favor  of  the  vendor  as  security 
for  payment  of  the  purchase  priced 

§  377.  Conclusions. — In  the  foregoing  discussion  I  have 
shown,  in  the  most  conclusive  manner,  that  every  species 
of  purely  equitable  property,  and  of  equitable  interests 
analogous  to  property,  except  those  which  are  intentionally 
created  by  the  direct  and  affirmative  operation  of  some  in- 
strument similar  in  its  action  to  a  conveyance  at  law,i  is  a 
certain  and  necessary  result  of  the  principle,  that  equity 
treats  that  as  done  which  in  good  conscience  ought  to  be 
done.  It  is  no  exaggeration,  therefore,  to  say  that  the  prin- 
ciple lies  at  the  very  foundation  of  tlie  department  of  equity 
jurisprudence  which  deals  with  equitable  estates,  property, 
and  interests  analogous  to  property.* 


SECTION  n. 

EQUITY   LOOKS    TO    THE    INTENT    RATHER    THAN    TO    THE 

FORM. 

ANALYSIS. 

§  378.  Its  meaning  and  effect. 

§  379.  Legal  requirements  of  mere  form, 

§§  380-384.  Is  the  source  of  equitable  doctrineB. 

§  380.  Of  equitable  property. 

§  381.  Of  penalties  and  forfeitures. 

§  382.  Of  mortgages. 

§  383.  Effect  of  the  seal, 

§  384.  Other  special  instances. 

§  376,  1  For  authorities  and  illustrations,  see  ante,  §  §  162,  163,  and 
notes. 

§  377,  1  The  lien  held  by  the  mortgagee,  created  by  the  affirmative 
operation  of  the  mortgage,  and  some  other  equitable  liens,  are  examples  of 
tliis  class. 

§  377,  (a)  This  paragraph  is  quoted  City  of  Golden,  23  Colo.  App.  461, 
in    Western   Lumber   &  Pole   Co.  v.       130  Pac.  1027. 


703  LOOKS   TO   INTENT   BATHER   THAN    TO    FORM.  §  378 

§  378.  Its  Meaning  and  Effect. — The  principle  involved 
in  this  maxim,  which  is  one  of  great  practical  importance, 
pervades  and  affects  to  a  greater  or  less  degree  the  entire 
system  of  equity  jurisprudence,  and  is  inseparably  con- 
nected with  that  which  forms  the  subject  of  the  preceding 
section.  In  fact,  it  is  only  by  looking  at  the  intent  rather 
than  at  the  form,  that  equity  is  able  to  treat  that  as  done 
ivhich  in  good  conscience  ought  to  he  done.^  In  explaining 
the  meaning  and  operation  of  the  one  maxim,  and  the  effects 
produced  by  it,  I  have  necessarily  described  the  significance 
and  workings  of  the  other.  The  two  principles  act  together 
and  aid  each  other,  and  it  is  by  their  universality  and  truth 
that  much  of  equity  jurisprudence  which  is  peculiar  and 
distinctive,  in  contrast  with  the  law,  has  been  developed. 
Equity  always  attempts  to  get  at  the  substance  of  things, 
and  to  ascertain,  uphold,  and  enforce  rights  and  duties 
which  spring  from  the  real  relations  of  parties.  It  will 
never  suffer  the  mere  appearance  and  external  form  to  con- 
ceal the  true  purposes,  objects,  and  consequences  of  a  trans- 
action.^ This  principle  of  looking  after  the  intent  and  giv- 
ing it  effect  was  fully  recognized  and  distinctly  formulated 
at  an  early  day.  In  one  leading  case  Lord  Chancellor 
Macclesfield  said:  '^The  true  ground  of  relief  against  pen- 
alties is  from  the  original  intent  of  the  case,  where  the 
penalty  is  designed  only  to  secure  money,  and  the  court 
gives  the  party  all  that  he  expects  or  desired."  i  In  an- 
other case  Lord  Thurlow  said:  "The  rule  is,  that  where 

§  378,  I  Peachy  v.  Duke  of  Somerset,  1  Strange,  447,  Prec.  Ch.  568,  2 
Eq.  Cas.  Abr.  227,  228. 

§378,    (a)    The   text   is   quoted   in  Co.  (C.  C.  A.),  129  Fed.  274,  287;  in 

Petty   V.   Gacking,   97    Ark.   217,   33  Western    Union    Tel.    Co.    v.    Postal 

L.  R.  A.  (N.  S.)   175,  133  S.  W.  832;  Tel.  Co.,  217  Fed.  533,  133  C.  C.  A. 

Spaulding  Mfg.   Co.   v.   Godbold,   92  385;   in   State  Life  Ins.   Co.  v.  Nel- 

Ark.   63,   135   Am.    St.   Rep.    168.    19  son,  46  Ind.  App.  137,  92  N".  E'.  2. 
Ann.  Cas.  947,  29  L.  R.  A.    (N.  S.)  This  paragraph  is  cited  in  Ogden 

282,  121  S.  W.  1063.  v.  Stevens,  241  111.  556,  132  Am.  St. 

§  378,    (b)    The   text  is   quoted   in  Rep.  237,  89  N.  E.  741. 
Heinze  v.  Butte   &  B.   Consol.   Min. 


§  379  EQUITY    JURISPRUDENCE.  704 

a  penalty  is  inserted  merely  to  secure  the  enjoyment  of  a 
collateral  object,  the  enjoyment  of  that  object  is  considered 
as  the  principal  intent  of  the  deed,  and  the  penalty  only  as 
occasional."  2  It  is  true  that  in  both  of  these  cases  the 
court  was  dealing  with  penalties;  but  the  principle  stated 
in  them  is  of  universal  application,  that  equity  always  seeks 
for  the  real  intent  under  the  cover  of  whatever  forms  and 
appearances,  and  will  give  effect  to  such  intent  unless  pre- 
vented by  some  positive  and  mandatory  rule  of  the  law. 

§  379.  Legal  Requirements  of  Form. — The  ancient  com- 
mon law  paid  great  deference  to  matters  of  pure  form,  as, 
for  example,  in  the  symbolical  process  called  'Mivery  of 
seisin,"  by  which  alone  a  freehold  estate  in  land  could  be 
transferred.  Although  such  observances  have  long  been 
abandoned,  still  the  present  rules  of  the  law  permit  prop- 
erty in  land  or  chattels  to  be  created,  transferred,  or 
acquired  only  in  certain  defined  modes,  by  means  of  the 
certain  specified  acts  or  events  which  constitute  all  the  pos- 
sible legal  titles. 1  It  was  also  one  characteristic  feature 
of  the  ancient  law  that  it  held  contracting  parties  to  a 
most  rigid  observance  of  all  the  stipulations  of  their  valid 
agreements;  performance  to  the  very  letter  of  every  cove- 
nant or  promise  was  the  inflexible  rule. 2  Still  another 
purely  formal  element  of  the  law  consisted  in  the  extreme 
importance  which  it  attached  to  the  seal.     The  momentous 

§  378,  2  Sloman  v.  Walter,  1  Brown  Ch.  418.  And  see  2  Lead.  Cas. 
Eq.,  4th  Am.  ed.,  2014,  2022,  and  notes. 

§  379,  1  See  an  enumeration  of  these  modes,  ante,  §  366. 

§  379,  2  For  example,  if  A  boi-rowed  one  hundred  pounds  to  be  repaid 
in  six  months,  and  as  security  gave  his  creditor  a  conditional  conveyance 
in  fee  of  an  estate  worth  one  hundred  thousand  pounds,  to  become  void 
if  the  money  was  paid  on  the  specified  day,  and  in  default  of  such  pay- 
ment to  be  absolute,  and  for  any  reason  the  debtor  suffered  the  pay  day 
to  pass  without  performance,  the  ancient  law  would  no  more  relieve  the 
debtor  from  the  onerous  provisions  of  his  conveyance,  or  modify  their 
rigor,  than  it  would  discharge  him  from  his  obligation  to  pay  the  debt  of 
one  hundred  pounds;  both  would  be  regarded  as  standing  ui^on  exactly  the 
same  foundation  of  express  contract. 


705  LOOKS   TO    INTENT   RATHER    THAN    TO    FORM.  §  380 

and  often  most  arbitrary  results  which  flowed  from  tlie 
presence  or  absence  of  a  seal,  and  its  ,effect  upon  private 
rights  of  property  and  of  contract,  rendered  many  of  the 
rules  of  the  early  law  peculiarly  rigid  and  almost  barbarous. 
The  equity  jurisprudence,  in  all  these  respects,  differed 
widely  from  the  common  law;  from  the  very  beginning  it 
was  distinguished  by  an  entire  absence  of  these  arbitrary 
and  purely  formal  incidents.  That  they  have  now,  in  a 
great  degree,  disappeared  from  the  law  itself,  which  has 
in  consequence  become  more  enlightened  and  more  just,  is 
wholly  due  to  its  gradual  adoption  of  equitable  principles, 
to  its  acceptance  of  doctrines  originating  in  the  court  of 
chancery.* 

§  380.  Is  the  Source  of  Equitable  Doctrines — Of  Prop- 
erty.— I  shall  now  state,  by  way  of  illustration,  some  of  the 
most  important  instances  in  which  the  principle  has  been 
applied,  and  the  settled  doctrines  of  equity  jurisprudence 
which  are  its  immediate  results.  The  first,  and  by  far  the 
most  important  consequence  of  the  principle,  reaching 
through  a  large  part  of  the  equity  jurisprudence,  is  found 
in  every  species  of  equitable  property,  estate,  or  interest, 
and  of  equitable  lien,  so  far  as  these  exist  by  the  doctrines 
of  equity,  but  not  by  those  of  the  law.  While,  as  is  shown 
in  the  last  section,  all  these  purely  equitable  property  inter- 
ests and  liens  arise  from  the  direct  operation  of  the  grand 
principle,  equity  treats  that  as  done  which  in  good  con- 
science ought  to  be  done,  still  this  maxim  could  only  produce 
such  effects  in  consequence  of  the  other  principle,  that 
equity  looks  at  the  intent  rather  than  at  the  form.^-  In 
every  kind  of  equitable  property,  or  interest  analogous  to 
property,  the  external  acts  or  events  peremptorily  required 

§  379,   (a)    This  paragraph   of   the  §  380,    (a)    The    text    is    cited    in 

text  is  cited  in  Williams  v.  Uneom-       Clarke   v.    Clarke,   46    S.   C.   230,   57 
pahgre   Canal   Co.,   13   Colo.   477,   22       Am.  St.  Rep.  675  (as  to  the  doctrine 
Pac.    806;    Hooper   v.    Central   Trust       of  conversion), 
Co.,  81  Md.  559,  29  L.  R.  A.  262,  32 
Atl.  505. 

1—45 


§  380  EQUITY    JURISPRUDENCE.  706 

by  the  law  in  order  to  the  existence  of  any  property  are 
wholly  wanting;  so  that  if  the  external  form  of  the  trans- 
action had  been  regarded,  no  property,  nor  right  resembling 
property,  could  possibly  exist.  It  is  by  disregarding  these 
forms  and  looking  at  the  real  relations  involved  in  the 
acts  of  the  parties,  at  the  real  substance  and  intent  of  the 
transaction,  that  the  court  of  chancery  has  built  up  its 
magnificent  structure  of  equitable  property,  estates,  and 
proprietary  interests.  The  same  is  true  of  a  large  part  of 
equitable  liens.  The  external  form  is  either  an  assignment, 
which  at  the  law  is  wholly  nugatory,  or  an  executory  agree- 
ment, which  at  law  only  creates  a  mere  personal  right  of 
action, — at  most  a  claim  for  damages;  but  equity,  going 
below  this  mere  appearance,  and  seeing  the  real  intent, 
gives  effect  thereto  by  treating  the  assignment  or  agree- 
ment as  creating  a  definite  lien  upon  specific  lands,  or  chat- 
tels, or  securities,  or  other  kind  of  fund,  as  the  case  may 
be.i^     The  discussions  of  the  last  preceding  section  fully 

§  380,  1  As  a  single  illustration :  An  instrument  purporting  to  be  a 
mortgage  of  law,  but  imperfectly  executed  by  the  omission  of  a  seal  or  in 
some  other  manner,  so  as  to  be  defective  in  form,  is  wholly  nugatory  at  law 
as  a  valid  mortgage,  or  as  giving  any  interest  in  or  claim  upon  the  parcel 
of  land  described.  Equity,  however,  not  saying  that  the  instrument  is  a 
true  legal  mortgage,  declares  that  it  is  an  efficient  agreement  to  give  a 
mortgage,  and,  as  such,  that  it  creates  an  equitable  lien  upon  the  land, 
valid  for  all  purposes,  and  as  against  all  parties,  except  a  purchaser  of 
the  land  for  a  valuable  consideration  and  without  notice :  See  Love  v. 
Sierra  Nevada,  etc.,  Co.,  32  Cal.  639,  653,  654,  91  Am.  Dec.  602,  and  cases 
cited. 

§  380,  (b)  A  deed  defective  in  form  Eayburn,    18    Or.    3,    22    Pae.    521; 

will  generally  be  treated  in   equity  Hyne  v.  Osborn,  62  Mich.  235,  28  N. 

as  a  contract  to  convey,  specific  per-  W.  821.     See,  also,  Barnes  v.  Banks, 

formance   of  which  will  be   decreed  223  111.  352,  114  Am.  St.  Eep.  331,  8 

when  that  remedy  is  not  inequitable.  L.  R.  A.   (N.  S.)   1037,  79  N.  E.  117 

See  Munds  v.  Cassidy,  98  N.  C.  558,  (unsealed  instrument  of  gift  of  real 

4  S.  E.  355  (lack  of  seal) ;  Sparks  v.  property  conveys  an  equitable  title) ; 

Woodstock    Iron,    etc.,    Co.,  87  Ala.  Francis    v.    Preachers'    Aid    Society, 

294,  6  South.  195  (defective  attesta-  149  Iowa,  158,  126  N.  W.  1027.     As 

tion) ;  Dreutzer  v.  Lawrence,  58  Wis.  to  the  equitable  lien  created  by  de- 

594,  17  N.  W.  423  (same);  Wood  v.  fective  mortgages,  see  §1237. 


707  LOOKS    TO    INTENT    KATHER    THAN    TO    FORM.  §  381 

illustrate  and  demonstrate  the  correctness  of  this  conclu- 
sion. 

§  381.  Penalties  and  Forfeitures. — It  was  an  inflexible 
doctrine  of  the  ancient  common  law  that  parties  must  be 
held  to  a  strict  performance  of  all  the  stipulations  of  their 
valid  agreements ;  that  is,  unless  the  agreement  was  wholly 
void  from  its  illegality.  "Whenever,  therefore,  a  contract 
provided  for  a  penalty  or  a  forfeiture,  the  full  penalty  or 
forfeiture  would  be  enforced  by  a  court  of  law  without  the 
slightest  regard  to  the  amount  of  damages  actually  sus- 
tained by  the  obligee  or  promisee  from  the  default.  The 
action  of  equity  in  such  cases  affords  a  most  striking  illus- 
tration of  the  principle  which  we  are  discussing.  It  was  at 
first  confined  to  contracts  for  the  payment  of  some  definite 
sum  of  money,  in  which  the  debtor  also  bound  himself,  in 
case  of  his  default,  to  pay  a  larger  sum  by  way  of  penalty, 
or  that  the  creditor  might  become  absolute  owner  of  specific 
property  of  a  larger  value  by  way  of  forfeiture,  where  the 
intent  was  plain  that  the  penalty  or  forfeiture  was  added 
simply  as  a  security  for  the  payment  of  the  real  indebted- 
ness. This  action  of  equity  with  reference  to  purely  money 
contracts  was  soon  extended  to  other  agreements  in  which 
a  party  undertook  to  perform  some  act,  to  render  some  ser- 
vice, to  transfer  some  property,  to  surrender  some  right, 
and  a  penalty  or  forfeiture  was  added.  The  general  doc- 
trine was  finally  settled  that,  wherever  a  penalty  or  forfeit- 
ure is  inserted  merely  to  secure  the  payment  of  money,  or 
the  performance  of  some  act,  or  the  enjoyment  of  some 
right  or  benefit,  equity  regards  such  payment,  performance, 
or  enjoyment  as  the  real  and  principal  intent  of  the  instru- 
ment, and  the  penalty  or  forfeiture  as  merely  an  accessory, 
and  will  therefore  relieve  the  debtor  partly  from  such  pen- 
alty or  forfeiture,  whenever  the  actual  damages  sustained 
by  the  creditor  party  can  be  adequately  compensated.  The 
application  of  the  principle  in  such  cases,  and  the  relief 
against  penalties  or  forfeitures,  must  always  depend  upon 
the  question  whether  compensation  can  or  cannot  be  made. 


§  381  EQUITY    JURISPRUDENCE.  708 

If  the  principal  contract  is  merely  for  the  payment  of 
money,  there  can  be  no  difficulty;  the  debtor  party  will 
always  be  relieved  from  the  penalty  or  forfeiture  upon  pay- 
ing the  amount  due  and  interest.  If  the  principal  contract 
is  for  the  performance  of  some  other  act  or  undertaking, 
and  its  non-performance  can  be  pecuniarily  compensated, 
the  amount  of  such  damages  will  be  ascertained,  and  the 
debtor  will  be  relieved  upon  their  payment. ^  But  the  prin- 
ciple, in  this  scope  of  its  operation,  is  not  confined  to  agree- 
ments ;  it  has  been  extended  so  as  to  prevent  the  forfeiture 
of  a  tenant's  estate  under  a  clause  of  re-entry  for  the  non- 
payment of  rent,  or  for  the  breach  of  some,  though  not  of 
all,  the  covenants  contained  in  a  lease  ;2  and  to  prevent  the 
enforcement  of  a  forfeiture  for  the  non-performance  of  con- 
ditions subsequent.^  *  As  equity  will  often  interfere  in  this 
manner  to  relieve  against  a  penalty  or  forfeiture  which  per- 
haps would  be  entirely  valid  at  law,  it  follows  as  a  matter 
of  course  that  a  court  of  equity  will  never,  by  its  affirmative 

§  381,  1  Peachy  v.  Duke  of  Somerset,  1  Strange,  477 ;  Sloman  v.  Walter, 
1  Brown  Ch.  418,  2  Lead.  Cas.  Eq.,  4th  Am.  ed.;  2014,  2023,  2044;  Elliott 
V.  Turner,  13  Sim.  477;  Rogan  v.  Walker,  1  Wis.  527;  Grigg  v.  Landis, 
21  N.  J.  Eq.  494 ;  Giles  v.  Austin,  38  N.  Y.  Sup.  Ct.  215 ;  Hagar  v.  Buck, 
44  Vt.  285,  8  Am.  Rep.  368. 

§  381,  2  The  tenant  will  be  relieved  from  a  forfeiture  incurred  by  his 
breach  of  a  condition  for  a  nonpayment  of  rent,  because  the  extent  of 
the  lessor's  real  claim,  the  amount  of  rent  due,  can  easily  be  ascertained, 
and  satisfied  by  a  pajTuent.  The  relief  may  be  given  on  the  breach  of 
some  other  covenants,  but  is  not  generally  extended  to  covenants  to  repair, 
to  insure,  etc.  See  2  Lead.  Cas.  Eq.,  4th  Am.  ed.,  2014,  2023,  2044,  and 
notes;  Hill  v.  Barclay,  16  Ves.  402,  18  Ves.  56,  62;  Reynolds  v.  Pitt,  19 
Ves.  134;  White  v.  Warner,  2  Mer.  459;  Ex  parte  Vaughan,  Turn.  &  R. 
434;  Green  v.  Bridges,  4  Sim.  96;  Elliott  v.  Turner,  13  Sim.  477;  Gregory 
V.  Wilson,  9  Hare,  683;  Croft  v.  Goldsmid,  24  Beav.  312;  Palmer  v.  Ford, 
70  111.  369. 

§  381,  3  Smith  v.  Jewett,  40  N.  H.  530 ;  Warner  v.  Bennett,  31  Conn. 
408;  Robinson  v.  Loomis,  51  Pa.  St.  78;  Rogan  v.  Walker,  1  Wis.  527; 
Hagar  v.  Buck,  44  Vt.  285,  8  Am.  Rep.  368 ;  Orr  v.  Zimmerman,  63  Mo.  72. 

§  381,  (a)  The  greater  part  of  this  N.  Y.  R.  Co.  v.  Bouvier,  70  N.  J.  Eq, 
paragraph  is  quoted  in  Baltimore  &       158,  62  Atl.  868,  by  Pitney,  V.  C. 


709  LOOKS   TO    INTENT   RATHER    THAN    TO    FORM.  §  382 

action,  or  by  the  affirmative  provisions  of  its  decree,  enforce 
a  penalty  or  forfeiture,  or  any  stipulation  of  that  nature, 
but  will  always  leave  the  party  entitled  to  prosecute  his 
claim  in  a  court  of  law  according  to  legal  rules.* 

§  382.  Mortgages. — Another  most  remarkable  applica- 
tion of  the  principle,  from  which  arose  an  entire  department 
of  equity  jurisprudence,  was  the  equity  of  redemption, — 
the  equitable  right  and  estate  of  the  mortgagor,  after  the 
legal  title  of  the  mortgagee  had  become  absolute  by  a  non- 
performance of  the  condition.  Looking  at  the  real  intent 
of  the  parties,  and  considering  the  debt  as  the  substantial 
feature,  and  the  conveyance  as  a  security,  only,  for  its  pay- 
ment, the  court  of  chancery  declared  that  a  breach  of  the 
condition  was  in  the  nature  of  a  penalty  which  ought  to  be 
relieved  against,  and  that  the  mortgagee  had  an  equity  to 
redeem  on  payment  of  the  debt  and  interest,  notwithstand- 
ing the  forfeiture  at  law;  and  furthermore,  that  this  right 
of  redemption  could  not  be  given  up,  waived,  or  parted  with 
by  any  stipulation  or  covenant  in  the  deed.i  *  The  whole 
system  of  equity  jurisprudence  presents  no  finer  example  of 
the  triumph  of  equitable  principles  over  the  arbitrary  and 
unjust  dogmas  of  the  common  law  than  this. 

§  381,  4  Livingston  v.  Tompkins,  4  Johns.  Ch.  415,  431,  8  Am.  Dec. 
598;  McKim  v.  Whitehall  Co.,  2  Md.  Ch.  510;  Shoup  v.  Cook,  1  Cart. 
135;  Warner  v.  Bennett,  31  Conn.  468,  478;  Lefforge  v.  West,  2  Ind.  514, 
516  (will  not  decree  forfeiture  of  an  estate  on  account  of  waste) ;  Smith 
V.  Jewett,  40  N.  H.  530,  534;  Clark  v.  Drake,  3  Chand.  253,  259;  Eveleth 
V.  Little,  16  Me.  374,  377;  Gordon  v.  Lowell,  21  Me.  251,  257  (will  not 
enforce  a  penalty  created  by  statute) ;  Fitzhugh  v.  Maxwell,  34  Mich.  138 
(will  not  enforce  a  forfeiture  for  non-performance  of  a  condition  subse- 
quent in  a  contract  for  the  sale  of  land) ;  Beecher  v.  Beecher,  43  Conn. 
556  (same  rule) ;  Palmer  v.  Ford,  70  111.  369  (forfeiture  for  non-payment 
of  rent) ;  Orr  v.  Zimmerman,  63  Mo.  72. 

§  382,  1  Casborne  v.  Scarfe,  1  Atk.  603 ;  Howard  v.  Harris,  1  Vern. 
190,  2  Lead.  Cas.  Eq.,  4th  Am.  ed.,  1945,  1949,  1952,  1983;  see,  also,  ante, 
§§162,  163,  and  notes. 

§382,  (a)  The  doctrine  that  a  deed  of  the  maxim:  See  post,  §  1196;  Stitt 
absolute  in  form  may  be  shown  to  be  v.  Eat  Portage  L,  Co.,  96  Minn.  27, 
a  mortgage  is  a  striking  illustration       104  N.  W.  561. 


§  383  EQUITY    JURISPRUDENCE.  710 

§  383.  Effect  of  the  Seal. — The  imxwrtant  part  played  by 
the  seal  in  the  early  common  law,  and  the  intensely  technical 
and  arbitrary  effects  produced  by  it  according  to  the  legal 
rules  are  too  well  known  to  require  any  statement.  Equity 
has  applied  its  principle  of  looking  at  the  intent  rather  than 
at  the  form,  in  some  instances,  by  treating  the  presence  of  a 
seal  as  a  matter  of  no  consequence,  as  producing  no  effect 
upon  rights  and  duties  of  parties;  in  other  instances,  by 
disregarding  its  absence  where  such  absence  would  be  fatal 
at  the  law.  Although  the  common  law,  in  theory,  required 
a  valuable  consideration  in  order  to  render  any  agreement 
valid  and  binding,  yet  it  declared  that  a  seal  was  conclusive 
evidence  of  such  a  consideration,  and  under  no  circum- 
stances would  it  permit  this  arbitrary  effect  to  be  removed 
by  evidence  showing,  no  matter  how  clearly,  the  absence 
of  any  consideration.  Equity,  disregarding  such  form  and 
looking  at  the  reality,  always  requires  an  actual  considera- 
tion, and  permits  the  want  of  it  to  be  shown,  notwithstand- 
ing the  seal,  and  applies  this  doctrine  to  covenants,  settle- 
ments, and  executory  agreements  of  every  description.^  ^ 

§  383,  1  In  Ord  v.  Johnston,  1  Jur.,  N.  S.,  1063,  1065,  Stuart,  V.  C, 
said :  "This  court  never  interferes  in  support  of  a  purely  voluntary  agree- 
ment, or  where  no  consideration  emanates  from  the  individual  seeking  the 
performance  of  the  agreement."  In  Houghton  v.  Lees,  1  Jur.,  N.  S.,  862, 
863,  the  same  judge  said:  "Of  the  general  doctrine  of  the  court  on  this 
subject,  there  is  no  doubt  whatever.  This  court  will  not  perform  a  volun- 
tary agreement,  or  what  is  more,  a  voluntary  covenant  under  seal.  Want 
of  consideration  is  a  sufficient  reason  for  refusing  the  assistance  of  the 
court."  See,  also,  Jefferys  v.  Jefferys,  Craig  &  P.  138,  141,  per  Lord 
Chancellor  Cottenham,  who  says  the  doctrine  extends  to  contracts,  cove- 
nants, and  settlements,  and  in  other  cases  it  is  applied  to  voluntary  execu- 
tory trusts;  the  seal  produces  no  effect  whatever  in  such  voluntary  under- 

§383,    (a)    Selby  v.   Case,   87   Md.  McCoy,  138  Fed.  696,  in  support  of 

459,   39    Atl.    1041.     This   paragraph  the  dictum  that  the  lack  of  consid- 

is    cited,    and    the    text    quoted,    in  eration  in  an  option,  rendering  it  a 

Lacey   v.   Hutchinson,    5     Ga.    App.  revocable   offer,   may  be  shown  not- 

865,  64  S.  E.  105,  a  historical  review  withstanding  that  the  option  is  un- 

of  the  doctrines  at  law  and  in  equity  der    seal.     This    is    a    question    on 

relating   to    the    effect   of    the    seal.  which    the    authorities    are    at   vari- 

This  paragraph  is  cited  in  Couch  v.  ance:   See  Pom.  Eq.  Eem. 


711  LOOKS   TO    INTENT   RATHER   THAN    TO    FORM.  §  383 

Another  application  of  the  principle  is  still  more  striking 
and  just.  The  early  common  law  attributed  such  an  efficacy 
to  the  seal  that  a  written  obligation  under  seal  could  only 
be  discharged  by  an  instrument  of  the  same  high  character, 
— that  is,  by  a  writing  under  seal.  A  subsequent  written 
but  not  sealed  agreement,  revoking  or  modifying  the  terms 
of  the  prior  specialty,  or  a  parol  accord,  or  even  payment 
in  full  unaccompanied  by  technical  release,  or  any  other 
matter  in  pais,  could  not  alter  the  rights  and  liabilities 
arising  from  the  sealed  instrument;  it  could  still  be  en- 
forced against  the  obligor  by  an  action  at  law,  and  such 
acts  furnished  him  no  legal  defense  whatever.  Such  a  doc- 
trine was  abhorrent  to  the  spirit  of  equity.  Paying  no 
attention  to  the  form  of  the  transaction,  if  the  act  done  was, 
in  substance,  a  discharge,  the  court  of  equity  treated  it  as 
equivalent  in  its  effects  to  a  technical  release,  and  would 
relieve  the  obligor  in  any  manner  required  by  the  circum- 
stances of  the  case,  even  by  a  decree  for  a  delivery  up  or 
cancellation  of  the  sealed  undertaking.^  c     One  most  im- 

takings:  Cochrane  v.  Willis,  34  Beav,  359;  Meek  v.  Kettlewell,  1  Phila. 
342,  1  Hare,  464 ;  Hervey  v.  Audland,  14  Sim.  531 ;  Shepherd  v.  Shepherd, 
1  Md.  Ch.  244;  Yasser  v.  Vasser,  23  Miss.  378;  Minturn  v,  Seymour,  4 
Johns.  Ch.  497;  Burling  v.  King,  66  Barb.  633;  Estate  of  Webb,  49  Cal. 
541,  545 ;  Stone  v.  Hackett,  12  Gray,  227.  In  a  few  early  cases  it  was  held 
that  voluntary  agreements,  if  under  seal,  should  be  enforced;  but  these 
decisions  and  dicta  have  long  since  been  oveiTuled;  as,  for  example,  see 
Beard  v.  Nutthall,  1  Vem.  427;  Wiseman  v.  Koper,  1  Ch.  Cas.  Ch.  84; 
Tyrrell  v.  Hope,  2  Atk.  562 ;  Edwards  v.  Countess  of  Wai-wick,  2  P.  Wms. 
176.^ 

§  383,  2  Of  course  the  discharge  must  be  upon  a  valuable  consideration 
in  order  that  equity  might  enforce  it :  Cross  v.  Sprigg,  6  Hare,  552 ;  Tuf- 
nell  V.  Constable,  8  Sim.  69;  Yeomans  v.  Williams,  L.  R.  1  Eq.  184;  Taylor 
V.  Manners,  L.  R.  1  Ch.  48;  Hurlbut  v.  Phelps,  30  Conn.  42;  Campbell's 
Estate,  7  Pa.  St.  100,  47  Am.  Dec.  503;  Kidder  v.  Kidder,  33  Pa.  St.  268. 
The  early  common  law  was  so  monstrous  in  its  adherence  to  this  rule,  that 
if  the  debtor  on  a  bond  or  other  specialty  had  paid  the  demand  in  full, 

§383,  (b)  The  latter  part  of  note  N.  Y.  1,  16  Am.  St.  Rep.  793.  6  L.  R. 

is   cited  in   Lacey   v.   Hutchinson,   5  A.  506,  23  N.  E.  198.    This  paragraph 

Ga.  App.  865,  64  S.  E.  105.  is  cited  in  Riggs  v.  Gillespie  (C.  C. 

§383,  (c)    McCreery   v.   Day,   119  A.),  241  Fed.  311. 


§  383  EQUITY    JURISPRUDENCE.  712 

l^ortant  consequence  of  this  principle  is  seen  in  the  legal 
and  equitable  liabilities  of  sureties.  Where  the  surety's 
contract  is  under  seal,  he  is  not,  by  the  strict  common-law 
rules,  discharged  by  any  conduct  of  the  creditor  towards 
the  principal  debtor,  by  an  alteration  of  the  principal 
debtor's  undertaking,  or  by  an  agreement  with  the  principal 
debtor  extending  his  time  of  payment,  since  the  surety's 
liability  could  only  be  discharged  by  an  instrument  under 
seal.^  Equity  was  therefore  compelled  to  interfere  under 
these  circumstances,  and  relieve  the  surety  by  restraining 
the  creditor  from  suing  at  law,  and  compelling  him  to  sur- 
render and  cancel  the  guaranty.'*  There  are  other  instances 
of  the  disregard  shown  by  equity  to  the  presence  or  absence 
of  a  seal  in  determining  the  rights  of  parties.  If,  for  an 
example,  an  instrument,  from  its  imperfect  execution  in 
wanting  a  seal,  is  inoperative  at  law  as  a  conveyance  or  as 
a  mortgage  of  land,  equity  may  treat  it  as  an  agreement 
to  convey  or  to  give  a  mortgage,  and  as  therefore  creating 
an  equitable  interest  in  or  lien  upon  the  land.® 

and  had  even  taken  a  written  receipt  therefor,  but  had  failed  to  procure 
a  surrender  up  of  the  instrument  or  a  release  of  his  liability,  the  creditor 
might  still  sue  at  law  and  recover  the  full  amount  again,  and  the  law  gave 
no  redress  or  defense.  One  of  the  first  steps  by  which  equity  broke  in 
upon  the  rigor  of  the  law  was  the  remedy  which  it  gave  to  the  obligor 
under  these  circumstances,  as  stated  in  the  text.  It  is  a  fact  that  the  com- 
mon-law lawyers  vehemently  inveighed  against  the  court  of  chancery  for 
this  alleged  invasion  of  legal  rules.  The  equitable  doctrine  long  ago  be- 
came a  part  of  the  law,  but  it  should  not  be  forgotten  that  it  originated 
in  the  court  of  chancery.* 

§  383,  3  Archer  v.  Hale,  1  Moore  &  P.  285 ;  Aldridge  v.  Harper,  3 
Moore  &  S.  518 ;  Brooks  v.  Stuart,  1  Beav.  512.  In  most  of  our  states,  if 
not  indeed  in  all,  this  particular  rule  of  the  common  law  does  not  prevail. 

§  383,  4  Rees  v.  Berrington,  2  A^es.  540,  2  Lead.  Cas.  Eq.,  4th  Am.  ed., 
1867,  1870,  1896. 

§383,   (d)   The  latter  part  of  note  440;  Allis  v.  Jones,  45  Fed.  148;  and 

2  is  cited  in  Lacey  v.  Hutchinson,  5  cited   generally   in   Williams   v.   Un- 

Ga.  App.  865,  64  S.  E.  105.  compahgre  Canal  Co.,   13   Colo.  477, 

§383,  (e)  The  text  is  cited  to  this  22  Pac.  806.     See  §  1237;  as  to  im- 

point  in  Scott  v.  Jenkins  (Fla.),  35  perfectly  executed  deeds,  atite,  §  380, 

South.   101;  Frost  v.   Wolf,   77  Tex.  note. 
455,  19  Am.  St.  Rep.  761,  14  S.  W. 


713  HE    WHO    SEEKS    EQUITY    MUST   DO    EQUITY.       §§384,385 

§  384.  Other  Special  Instances. — Other  doctrines  of 
equity,  by  which  the  strict  terms  of  contracts,  and  the  some- 
what arbitrary  rules  of  law  relating  thereto,  are  disre- 
garded in  order  to  promote  the  ends  of  justice,  may  also 
be  referred,  at  least  partly,  to  this  principle  of  looking  at 
the  real  intent  rather  than  at  the  form.  As  a  mere  illus- 
tration, I  mention  the  doctrine  which  generally  treats  as 
joint  and  several  the  rights  and  liabilities  arising  from 
contracts  which  are  regarded  by  the  law  as  strictly  joint, 
and  the  many  important  consequences  which  flow  from  this 
difference.  Enough  has  been  said,  however,  to  show  that 
the  principle  is  one  of  very  extensive  application,  and  from 
it,  either  alone  or  in  connection  with  others,  are  derived 
large  portions  of  equity  jurisprudence.* 


SECTION  m. 

HE  WHO  SEEKS  EQUITY  MUST  DO  EQUITY. 

ANALYSIS. 

5  385.  General  meaning  of  the  principle. 

§§  386,  387.  In  what  cases  applicable. 

§  388.  Is  a  general  rule  regulating  the  administration  of  reliefs. 

§§  389-393.  Illustrations  of  the  principle. 

§  389.  The  wife's  equity. 

§  390.  Equitable  estoppel. 

§  391.  Belief  against  usury. 

§§  392,  393.  Other  special  instances. 

§§  394-396.  Is  also  the  source  of  certain  equitable  doctrines. 

§  395.  Of  election. 

§  396.  Of  marshaling  securities. 

§  385.  Its  Meaning. — This  maxim  expresses  the  govern- 
ing principle  that  every  action  of  a  court  of  equity,  in 
determining  rights  and  awarding  remedies,  must  be  in  ac- 
cordance with  conscience  and  good  faith.  In  its  broadest 
sense  it  may  be  regarded  as  the  foundation  of  all  equity, 

§  384,  (a)  The  text  is  cited  in  Williams  v.  Uncompahgre  Canal  Co.,  13 
Colo.  477,  22  Pac.  803. 


§  385  EQUITY    JURISPRUDENCE.  7M 

as  tlie  source  of  every  doctrine  and  rule  of  equity  juris- 
prudence; since  it  is  undeniable  that  courts  of  equity  do 
not  recognize  and  protect  the  equitalile  rights  of  litigant 
parties,  unless  such  rights  are,  in  pursuance  of  the  settled 
juridical  notions  of  morality,  based  upon  conscience  and 
good  faith.  But  as  a  practical  principle,  guiding  the  equity 
courts  in  their  administration  of  justice,  the  maxim  is  only 
used  in  a  much  narrower  and  more  special  meaning.  Even 
in  this  narrow  signification  it  is  a  principle  of  most  exten- 
sive application;  it  may  be  applied,  in  fact,  in  every  kind 
of  litigation  and  to  every  species  of  remedy.^  The  mean- 
ing is,  that  whatever  be  the  nature  of  the  controversy  be- 
tween two  definite  parties,  and  whatever  be  the  nature  of 
the  remedy  demanded,  the  court  will  not  confer  its  equitable 
relief  upon  the  party  seeking  its  interposition  and  aid,  un- 
less he  has  acknowledged  and  conceded,  or  will  admit  and 
provide  for,  all  the  equitable  rights,  claims,  and  demands 
justly  belonging  to  the  adversary  party,  and  growing  out 
of  or  necessarily  involved  in  the  subject-matter  of  the  con- 
troversy.^ It  says,  in  effect,  that  the  court  will  give  the 
plaintiff  the  relief  to  which  he  is  entitled,  only  upon  con- 
dition that  he  has  given,  or  consents  to  give,  the  defendant 
such  corresponding  rights  as  he  also  may  be  entitled  to  in 
respect  of  the  subject-matter  of  the  suit.<^  This  meaning 
of  the  principle  was  more  definitely  expressed  by  an  emi- 
nent judge  in  the  following  terms:  ''The  court  of  equity 
refuses  its  aid  to  give  to  the  plaintiff  what  the  law  would 

§385,    (a)    The  text   is   quoted  in  553,    102   Pac.    956;    Cuthbertson    v. 

Lov.e  V.  Park,  95  Neb.  729,  146  N.  W.  Morgan,  149  N.  C.  72,  62  S.  E.  744. 
941.  §385,   (c)   This  sentence  is  quoted 

§  385,  (b)  This  portion  of  the  text  in    Charleston    &   W^    C.   E'y    Co.   v. 

is  quoted  in  Charleston  &  W.  C.  R'y  Hughes,  105  Ga.  1,  70  Am.  St.  Eep. 

Co.  V.  Hughes,  105  Ga.  1,  70  Am.  St.  17,  30   S.   E.   972;   Mack  v.  Hill,   28 

Rep.  17,  30  S.  E.  972;  De  Walsh  v.  Mont.   99,   72   Pac.  307;   Compton  v. 

Braman,  160  HI.  415,  43  N.  E.  597;  Jesup,  68  Fed.  263,  316,  31  U.  S.  App. 

Hooper  v.  Central  Trust  Co.,  81  Md.  486,  15  C.  C.  A.  397;  in  Cuthbertson 

559,   29   L.  E.  A.   262,   32   Atl.   505;  r.   Morgan,   149   N.   C.   72,   62   S.   E. 

Compton  V.  Jesup,  68  Fed.  263,  316,  744;  Rosenthyne  v.  Matthews-McCul- 

31  U.  S.  App.  486.  15  C.  C.  A.  397;  loch   Co.    (Utah),   168   Pac.   957,  dis- 

and  in  Cox  v.  Hughes,  10  Cal.  App.  senting  opinion. 


715  HE    WHO    SEEKS    EQUITY    MUST    DO    EQUITY.  §  385 

give  liim  if  the  courts  of  common  law  had  jurisdiction  to 
enforce  it,  without  imposing  upon  him  conditions  which  the 
court  considers  he  ought  to  comply  with,  althougli  the  su))- 
ject  of  the  condition  should  be  one  which  the  court  would 
not  otherwise  enforce."*^  In  this  narrow  and  particular 
sense  the  principle  becomes  a  universal  rule  governing  the 
courts  of  equity  in  administering  all  kinds  of  equitable  re- 
lief, in  any  controversy  where  its  application  may  be  neces- 
sary to  work  out  complete  justice.^  ® 

§  385,  I  In  the  two  following  quotations  this  aspect  of  the  principle  is 
stated  in  the  most  accurate  manner:  Hanson  v.  Keating,  4  Hare,  1,  4,  per 
Wigram,  V.  C. :  "The  argument  in  this  case  for  the  defendant  was  founded 
upon  the  well-established  rule  of  this  court,  that  a  plaintiff  who  would 
have  equity  must  do  equity,  a  rule  by  which,  properly  understood,  it  is  at 
all  times  satisfactory  to  me  to  be  bound.  But  it  is  a  rule  which,  as  it 
was  used  in  the  argument  of  this  case,  takes  for  granted  the  whole  question 
in  dispute.  The  rule,  as  I  have  often  had  occasion  to  obsem'e,  cannot 
per  se  decide  what  terms  the  court  should  impose  upon  the  plaintiff  as  the 
price  of  the  decree  it  gives  him.  It  decides  in  the  abstract  that  the  court, 
giving  the  plaintiff  the  relief  to  which  he  is  entitled,  will  do  so  only  upon 
the  terms  of  his  submitting  to  give  the  defendant  such  corresponding  rights 
(if  any)  as  he  also  may  be  entitled  to  in  respect  of  the  subject-matter  of 
the  suit.  What  those  rights  are  must  be  detemiined  aliunde  by  strict  rules 
of  law  [meaning,  of  course,  rules  of  equity,  not  of  common  law],  and 
not  by  any  arbitrary  determination  of  the  court.  The  rule,  in  short,  merely 
raises  the  question  what  those  terms,  if  any,  should  be.  If,  for  example,  a 
plaintiff  seeks  an  account  against  a  defendant,  the  court  will  require  the 

§  385,    (d)    The  text  is  quoted  in  terstate  Sav.  &  L.  Assn.  v.  Badgley, 

Bourgeois  v.  Eisley  Real  Estate  Co.,  115  Fed.  390;  Bensiek  v.  Thomas,  66 

82  N.  J.  Eq.  211,  88  Atl.  199;  Reeves  Fed.  104;  Brunner  v.  Warner  (Tenn. 

v.  White,  84  N.  J.  Eq.  661,  95  Atl.  Ch.  App.),  52  S.  W.  668;  also  in  Co- 

184.  burn  v.  Coke,  193  Ala.  364,  69  South. 

§385,    (e)    The   text   is   quoted   in  574;  Ilo  Oil  Co.  v.  Indiana  N.  G.  & 

Kempe  v.  Campbell,  44  Ohio  St.  210,  O.    Co.,    174   Ind.    635,   30   L.   R.   A. 

216,  6  N.  E.  566;  cited  in  Mahoney  (N.  S.)  1057,  92  N.  E.  1;  Kerr  v.  Me- 

v.  Bostwick,  96  Cal.  53,  31  Am.  St.  Creary,  84  Neb.  315,  120  N.  W.  1117 

Rep.   175,  30    Pac.    1020;    Wells    v.  (suit    to    quiet    title);    Swanson    v. 

Francis,  7  Colo.  336,  4  Pac.  49,  55;  Brawner  (Tex.  Civ.  App.),  155  S.  W. 

Otis  V.  Gregory,  111  Ind.  504,  13  N.  1191  (rescission);  Hanna  v.  Haynes, 

E.    39;    Snow   v.   Blount,    182   Mass.  42   Wash.   284,   84   Pac.   861    (rescis- 

489,   65  N.   E.   845    (citing  this   and  sion). 
following  sections  of  the  text) ;  In- 


§  386  EQUITY    JURISPRUDENCE.      .  71G 

§  386.  When  Applicable. — If  we  analyze  this  general 
formula,  we  shall  obtain  a  more  accurate  notion  of  the  real 
scope  and  effect  of  the  principle.  In  the  first  place,  the  rule 
only  applies  where  a  party  is  appealing  as  actor  to  a  court 
of  equity  in  order  to  obtain  some  equitable  relief ;  that  is, 
either  some  relief  equitable  in  its  essential  nature,  as  an 
injunction  or  a  cancellation,  or  equitable  because  it  may 

plaintiff  to  do  equity  by  submitting  himself  to  account  in  the  same  matter 
in  which  he  asks  an  account;  the  reason  of  which  is,  that  the  court  does 
not  take  accounts  partially,  and  perhaps  ineffectually,  but  requires  that 
the  whole  subject  be,  once  for  all,  settled  between  the  parties:  Clarke  v. 
Tipping,  4  Beav.  594,  595.  It  is  only  (I  may  observe  as  a  general  rule) 
to  the  one  matter  which  is  the  subject  of  a  given  suit  that  the  rule  applies, 
and  not  to  distinct  matters  pending  between  the  same  parties:  Wliitaker  v. 
Hall,  1  Glyn  &  J.  213.  So,  in  the  case  of  a  bill  for  specific  performance, 
the  court  will  give  the  purchaser  his  conveyance,  provided  he  will  fulfill 
his  part  of  the  contract  by  paying  the  purchase-money;  and  e  converso, 
if  the  vendor  were  plaintiff,  the  court  will  assist  him  only  upon  condition 
of  his  doing  equity  by  conveying  to  the  purchaser  the  subject  of  the 
contract  upon  receiving  the  purchase-money.  In  this,  as  in  the  former 
case,  the  court  will  execute  the  matter  which  is  the  subject  of  the  suit, 
wholly,  and  not  partially.  So,  if  a  bill  be  filed  by  the  obligor  in  an  usuri- 
ous bond,  to  be  relieved  against  it,  the  court,  in  a  proper  case,  will  cancel 
the  bond,  but  only  upon  terms  of  the  obligor  refunding  to  the  obligee  the 
money  actually  advanced.  The  reasoning  is  analogous  to  that  in  the  previ- 
ous cases.  The  equity  of  the  obligor  is  to  have  the  entire  transaction 
rescinded.  The  court  will  do  this  so  as  to  remit  both  parties  to  their 
original  positions;  it  will  not  relieve  the  obligor  from  his  liability,  leaving 
him  in  possession  of  the  fruits  of  the  illegal  transaction  he  complains  of. 
I  know  of  no  case  which  cannot  be  explained  upon  this  or  analogous  rea- 
soning ;  and  my  opinion  is,  that  the  court  can  never  lawfully  impose  merely 
arbitrary  conditions  upon  a  plaintiff,  only  because  he  stands  in  that  posi- 
tion upon  the  record,  but  can  only  require  him  to  give  the  defendant  that 
which  by  the  law  of  the  court,  independently  of  the  mere  position  of  the 
party  on  the  record,  is  the  right  of  the  defendant  in  respect  of  the  subject 
of  the  suit.  A  party,  in  short,  does  not,  by  becoming  plaintiff  in  equity, 
give  up  any  of  his  rights,  or  submit  those  rights  to  the  arbitrary  disposition 
of  the  court.  He  submits  only  to  give  the  defendant  his  rights  in  respect 
of  the  subject-matter  of  the  suit,  on  condition  of  the  plaintiff  obtaining 
his  own.  Cases  may  perhaps  be  suggested  in  which  a  question  never  can 
arise  except  against  a  plaintiff;  but  as  a  general  proposition,  it  may,  I 
believe,  be  correctly  stated,  that  a  plaintiff  wiU  never,  in  that  character,  be 


717  HE    WHO    SEEKS    EQUITY    MUST   DO    EQUITY.  §  386 

come  within  tiie  power  of  the  court  to  administer  by  virtue 
of  its  concurrent  jurisdiction,  as  an  accounting,  or  a  pecu- 
niary recovery;  and  it  is  necessarily  assumed  that  the 
party  would,  but  for  the  operation  of  the  rule,  be  entitled  to 
all  the  relief  which  he  demands.^'  Unless  the  party  were 
otherwise  so  entitled,  there  would  plainly  be  no  occasion  for 
invoking  the  rule.  With  respect  to  the  terms  which  may 
be  imposed  upon  the  party  as  a  condition  to  his  obtaining 

compelled  to  give  a  defendant  anything  but  what  the  defendant  might,  as 
plaintiff,  enforce,  provided  a  cause  of  suit  arose:  Lady  Elibank  v.  Monto- 
lieu,  5  Ves.  737;  Sturgis  v.  Champneys,  5  Mylne  &  C.  102."  It  will  ap- 
pear subsequently  that  this  last  proposition  of  the  learned  judge  is  ex- 
pressed in  somewhat  too  strong  terms,  and  requires  important  limitations 
upon  its  generality.  See,  also,  the  same  view  expressed  by  the  same  judge 
in  Neeson  v.  Clarkson,  4  Hare,  97,  101;  Sturgis  v.  Champneys,  5  Mylne 
&  C.  97,  101,  per  Lord  Cottenham:  "There  are  many  eases  in  which  this 
court  will  not  interfere  with  a  right  which  the  possession  of  a  legal  title 
gives,  although  the  effect  be  directly  opposed  to  its  own  principles  as  ad- 
ministered between  parties  having  equitable  interests  only,  such  as  in  cases 
of  subsequent  encumbrancers  without  notice  gaining  a  preference  over  a 
prior  encumbrancer  by  procuring  the  legal  estate.  It  may  be  to  be  re- 
gretted that  the  rights  of  property  should  thus  depend  upon  accident,  and 
be  decided  upon,  not  according  to  any  merits,  but  upon  gi'ounds  purely 
technical.  This,  however,  has  arisen  from  the  jurisdiction  of  law  and 
equity  being  separate,  and  from  the  rules  of  equity,  though  applied  to 
subjects  without  its  own  exclusive  jurisdiction,  not  having,  in  many  cases, 
been  extended  to  control  matters  properly  subject  to  the  jurisdiction  of 
the  courts  of  common  law.  Hence  arises  the  extensive  and  beneficial  rule  of 
this  court,  that  he  who  asks  for  equity  must  do  equity;  that  is,  this  court 
refuses  its  aid  to  give  to  the  plaintiff  what  the  law  would  give  him  if  the 
courts  of  common  law  had  jurisdiction  to  enforce  it,  without  imposing  upon 
him  conditions  which  the  court  considers  he  ought  to  comply  with,  although 
the  subject  of  the  condition  should  be  one  which  this  court  woidd  not 
otherwise  enforce.  If,  therefore,  this  court  refuses  to  assist  a  husband  who 
has  abandoned  his  wife,  or  the  assignee  of  an  insolvent  husband  who 
claims  against  both,  in  recovering  the  property  of  the  wife,  without  secur- 
ing out  of  it  for  her  a  proper  maintenance  and  support,  it  not  only  does 
not  violate  any  principle,  but  acts  in  strict  conformity  with  a  rule  by  which 
it  regulates  its  proceedings  in  other  cases." 

§386,  (a)  The  text  is  cited  to  this       siek  v.  Thomas,  66  Fed.  104;  Otis  v. 
effect  in  Flanary  v.  Kane  (Va.),  46       Gregory,  111  Ind.  504,  13  N.  E.  39. 
S,  E.  312;  and  cited  generally  in  Ben- 


§  386  EQUITY    JURISPRUDENCE.  718 

the  relief  in  accordance  with  the  rule, — that  is,  the  "equity" 
which  he  must  do, — it  is  undoubtedly  true,  as  said  by  Vice- 
Chancellor  Wigram,  that  the  court  obtains  no  authority 
from  this  principle  to  impose  any  arbitrary  conditions  not 
warranted  by  the  settled  doctrines  of  equity  jurisprudence ; 
the  court  cannot  deprive  a  plaintiff  of  his  full  equitable 
rights,  under  the  pretense  of  awarding  to  the  defendant 
something  to  which  he  has  no  equitable  right,  something 
which  equity  jurisprudence  does  not  recognize.  The  prin- 
ciple only  requires  the  plaintiff  to  do  ''equity."  Accord- 
ing to  its  true  meaning,  therefore,  the  terms  imposed  upon 
the  plaintiff,  as  the  condition  of  his  obtaining  the  relief, 
must  consist  of  the  awarding  or  securing  to  the  defendant 
something  to  which  he  is  justly  entitled  by  the  principles 
and  doctrines  of  equity,  although  not  perhaps  by  those  of 
the  common  law, — something  over  which  he  has  a  distinc- 
tively equitable  right.^  In  many  cases,  this  right  or  relief 
thus  secured  to  or  obtained  by  the  defendant,  under  the 
operation  of  the  rule,  might  be  recovered  by  him,  if  he  as 
plaintiff,  the  parties  being  reversed,  had  instituted  a  suit 
in  equity  for  that  purpose.  But  this  is  not  indispensable, 
nor  is  it  even  always  possible.  The  rule  may  apply,  and 
under  its  operation  an  equitable  right  may  be  secured  or  an 
equitable  relief  awarded  to  the  defendant  which  could  not 
be  obtained  by  him  in  any  other  manner, — that  is,  which  a 
court  of  equity,  in  conformity  with  its  settled  methods, 
either  would  not,  or  even  could  not,  have  secured  or  con- 
ferred or  awarded  by  its  decree  in  a  suit  brought  for  that 
purpose  by  him  as  the  plaintiff. ^  ^ 

§  386,  1  Upon  this  point  the  last  proposition  of  V.  C.  Wigram,  in  his 
opinion  quoted  ante,  under  §  385,  is  stated  in  much  too  strong  terms,  with- 

§  386,    (b)    The   text  is   quoted   in  bursing  the  purchaser  in  the  amount 

Cuthbertson  v.  Morgan,  149  N.  C.  72,  received    by    the    guardian    but    not 

62  S.  E.  744;  and  cited  in  Nugent  v.  received     by     the    infant    plaintiff: 

Stofella  (Ariz.),  84  Pae.  910.     Thus,  Manternach    v.   Studt,    240   111.   464, 

a  sale  of  an  infant's  property,  void  130  Am.  St.  Rep.  282,  88  N.  E.  1000. 

on  its  face,  may  be  set  aside  by  him  §386,  (c)  This  portion  of  the  text 

on  his  coming  of  age,  without  reim-  is   quoted  in   De   Walsh   v.  Braman, 


719  HE    WHO    SEEKS    EQUITY    MUST   DO    EQUITY.  §  387 

§  387.  Finally,  tlie  principle  will  not  apply  so  as  to 
compel  the  plaintiff  to  do  equity,  where  the  relief  sought 
by  the  plaintiff,  and  the  equitable  right  or  relief  secured 
or  awarded  to  the  defendant,  belong  to  or  grow  out  of  two 

out  the  necessary  qualifications.  Indeed,  one  of  the  examples  cited  by  him 
in  a  preceding  sentence  shows  the  incorrectness  of  his  conclusion  in  this 
particular.  The  statement  of  the  principle  by  Lord  Cottenham  is  more 
accurate  in  this  respect.  One  or  two  simple  examples  will  illustrate.  One 
of  the  most  familiar  applications  of  the  rule  is  the  "wife's  equity,"  so 
called,  the  securing  to  her  a  portion  of  her  own  property,  to  which  her 
husband  becomes  legally  entitled  by  the  marriage;  whenever  her  husband 
or  his  assignee  comes  into  a  court  of  equity  and  seeks  its  aid  to  reach  her 
property,  the  court  may,  under  certain  circumstances,  compel  the  plaintiff, 
as  a  condition  of  his  obtaining  relief,  to  secure  a  portion  of  the  property 
to  the  separate  use  of  the  wife  by  a  settlement,  although  at  law  she  has  no 
right  over  it.  This  is  sometimes  done  in  a  case  where  the  wife  herself 
could,  by  means  of  her  own  suit,  have  obtained  the  same  relief;  but  it 
may  also  be  done  where,  under  the  settled  doctrines  of  equity,  no  such  suit 
could  be  maintained  by  the  wife.  Under  statutes  against  usury,  which 
make  void  all  usurious  debts  and  obligations,  the  debtor  may  maintain  a 
suit  in  equity  for  the  purpose  of  procuring  the  usurious  bond  or  other 
security  to  be  surrendered  up  and  canceled;  but  this  relief  will  only  be 
granted  upon  the  condition  that  the  plaintiff  does  equity  by  repaying  to 
his  creditor  the  amount  which  was  actually  loaned  upon  the  security.*  In 
this  instance,  by  the  operation  of  the  principle,  the  defendant  obtains  a 
relief  which  he  could  not  possibly  have  obtained  in  any  other  manner;  for 
if  he  had  sued  the  debtor  either  at  law  or  in  equity  to  enforce  the  security 

160   111.   415,   43   N.   E.   597,   and   in  limitations   or   otherwise,   the   latter 

Bourgeois  v.  Eisley  Eeal  Estate  Co.,  could  not  enforce  in  any  other  way; 

82  N.  J.  Eq.  211,  88  Atl.  199  (a  judg-  cited   to    the   same    effect    in   Union 

ment  creditor  who  has  purchased  his  Central  Life  Ins.   Co.  v.  Drake,  214 

debtor's  land  for  a  small  fraction  of  Fed.   536,    131   C.    C.   A.   82;    United 

its  value,  and  seeks  the  aid  of  equity  Cigarette  Machine  Co.  v.  Brown,  119 

to  set  aside  a  fraudulent  conveyance  Va.    813,   L.   R.   A.    1917F,    1100,    89 

of  the  land,  is  only  entitled  to  the  S.   E.   850;    cited,   generally,  in  Hol- 

value   of   his    debt,   and   not   to   the  land  v.  Hotehkiss,  162  Cal.  366,  L.  R. 

land).     The   text   is   cited   in  Farm-  A.  1915C,  492,  123  Pac.  258  (suit  to 

ers'  Loan  &  T.  Co.  v.  Denver,  L.  &  cancel  tax  sale) ;  Swanson  v.  Brawner 

G.  R.  Co.,  126  Fed.  46,  51,  citing  also  (Tex.    Civ.    App.),    155    S.    W.    1191 

many  cases   and  holding  that  relief  (rescission). 

to    the    complainant    maj'    be    condi-  §  386,   («1)  This  portion  of  the  note 

tioned  on  the  enforcement  of  a  claim  is  quoted  in  Cox  v.  Hughes,  10  Cal. 

or    equity    held    by    the    defendant  App.  553,  102  Pac.  956. 
which,  by  reason  of  the  statute  of 


§  387  EQUITY    JURISPRUDENCE.  720 

entirely  separate  and  distinct  matters.  The  true  meaning 
of  the  rule  in  this  respect  is,  that  the  equitable  right  or 
relief  secured  to  or  conferred  upon  the  defendant  must  be 
something  connected  with  the  subject-matter  of  the  very 
suit  or  controversy  for  the  proper  decision  of  which  the 
principle  is  invoked.  Or,  to  state  the  same  doctrine  in  more 
detailed  and  particular  terms,  ''the  rule  is  applied  where 
the  adverse  equity  to  be  secured  or  awarded  to  the  defend- 
ant grows  out  of  the  very  controversy  before  the  court,  or 
out  of  such  transactions  as  the  record  shows  to  be  a  part_ 
of  its  historj^,  or  where  it  is  so  connected  with  the  cause  in 
litigation  as  to  be  presented  in  the  pleadings  and  proofs, 
with  full  opportunity  afforded  to  the  party  thus  recrim- 
inated to  explain  or  refute  the  charges. "  ^  ^    If  the  con- 

and  recover  the  debt,  the  defense  of  usury  would  be  a  complete  bar. 
Again,  in  many  of  the  states  a  tax-payer  may  maintain  a  suit  in  equity 
and  restrain  the  collecting  officer  from  enforcing  payment  of  illegal  taxes ; 
but  the  relief  of  injunction  will  not  be  granted  unless  the  plaintiff  pays 
in  full  all  that  part  of  the  tax  assessed  against  him  which  is  legal.  Here 
also  the  defendant  obtains  a  relief,  under  the  operation  of  the  principle, 
which  he  could  obtain  from  the  court  of  equity  in  no  other  manner;  for 
the  court  would  not  sustain  a  suit  in  equity  brought  by  the  collecting  officer 
to  enforce  payment  of  the  tax ;  his  only  affirmative  remedy  would  be  either 
at  law  or  by  special  statutory  proceedings. 

§  387,  1  Comstock  v.  Johnson,  46  N.  Y.  615.  Plaintiff  and  defendants 
were  owners  of  adjoining  mills.  Plaintiff  had  the  right  to  draw  water  for 
his  mUl  from  a  dam  belonging  to  defendants.  Plaintiff,  without  any  right, 
as  it  was  held,  erected  a  buzz-saw  on  an  open  space  in  front  of  defendants' 
mill,  and  propelled  it  by  water  from  defendants'  dam.  Defendants  there- 
upon shut  off  all  the  water  supply  to  the  plaintiff's  works,  that  to  the  mill 
as  well  as  that  for  the  saw.     Plaintiff  brought  a  suit  to  restrain  them  from 

§  387,  (a)  The  text  is  cited  in  Ma-  668.  See,  also,  Bethea  v.  Bethea,  116 
honey  v.  Bostwick,  96  Cal.  53,  31  Ala.  265,  22  South.  561;  Mackenna 
Am.  St.  Rep.  175,  30  Pae.  1020;  City  v.  Fidelity  Trust  Co.,  184  N.  Y.  411, 
of  Chicago  V.  Union  Stock  Yards  &  112  Am.  St.  Rep.  C20,  6  Ann.  Cas. 
Transit  Co.,  164  111.  224,  35  L.  R.  A.  471,  3  L.  R.  A.  (N.  S.)  1068,  77  N.  E. 
281,  45  N.  E.  430;  Wells  v.  Francis,  721  (cannot  be  required  to  satisfy 
7  Colo.  396,  4  Pac.  49,  55;  John  Ams-  an  independent  judgment  held  by  de- 
field  Co.  V.  Edward  B.  Grossman  &  f endant) ;  Peters  v.  Case,  62  W.  Ya. 
Co.,  98  ni.  App.  180;  Brunner  v.  33,  13  L.  R.  A.  (N.  S.)  408,  57  S.  E. 
Warner  (Tenn.  Ch.  App.),  52  S.  W.  733. 


721  HE    WHO    SEEKS   EQUITY    MUST    DO    EQL  ITY.  §  387 

duct  of  tlie  plaintiff,  growing  out  of  matters  entirely  dis- 
tinct and  unconnected  with  those  embraced  within  the  suit, 
can  affect  his  right  to  obtain  relief  which  would  be  other- 
wise proper,  it  must  be  by  virtue  of  another  equitable 
maxim,  He  who  comes  into  a  court  of  equity  must  come 
with  clean  hands. 

depriving  him  of  the  water.  He  was  held  to  be  entitled  to  the  relief,  but 
only  upon  condition  that  he  discontinued  the  use  of  the  saw.  Church, 
C.  J.,  said :  "The  rule  of  equity  is,  that  he  who  asks  equity  must  do  equity. 
The  plaintiff  was  in  fault  in  using  the  buzz-saw  on  the  defendants'  prem- 
ises. It  is  said  that  this  was  an  indei:»endent  transaction,  for  which  the 
defendants  might  have  an  action ;  and  this  was  the  view  of  the  court  below. 
The  rule  refen-ed  to  will  be  applied  where  the  adverse  equity  grows  out 
of  the  very  transaction  before  the  court,  or  out  of  such  circumstances  as 
the  record  shows  to  be  a  part  of  its  histoi-y,  or  where  it  is  so  connected 
with  the  cause  in  litigation  as  to  be  presented  in  the  pleadings  and  proofs, 
with  full  opportunity  afforded  to  the  party  thus  recriminated  to  explain 
or  refute  the  charges :  Tripp  v.  Cook,  26  \yend.  143 ;  McDonald  v.  Neilson, 
2  Cow.  139,  14  Am.  Dec.  431 ;  Casler  v.  Shipman,  35  N.  Y.  533.  It  is  not 
indispensable  to  the  application  of  this  rule  that  the  fault  of  the  plaintiff 
should  be  of  such  a  character  as  to  authorize  an  independent  action  for 
an  injunction  against  him."  This  case  well  illustrates  the  point  stated  in 
the  last  preceding  paragraph.  The  defendants  here  obtained,  by  operation 
of  the  rule,  a  relief  which  they  could  have  obtained  from  a  court  of  equity 
in  no  other  manner.  They  could  certainly  have  maintained  no  suit  in 
equity  to  recover  damages  from  the  plaintiff,  and  it  is  probable  that  the 
court  would  not  have  sustained  a  suit  brought  by  them  to  restrain  the 
plaintiff's  act,  or  to  abate  it  as  a  nuisance,  since  the  injury  was  not  irre- 
parable. For  additional  authorities  which  sustain  the  text,  see  Hanson  v. 
Keating,  4  Hare,  1,  5,  6,  per  Wigram,  V.  C;  Whitaker  v.  Hall,  1  Glyn  & 
J.  213;  Colvin  v.  Hartwell,  5  Clark  &  F.  484;  Com.  Dig.,  tit.  Chancery, 
3,  F,  3,  citing  Shish  v.  Foster,  1  Ves.  Sr.  88 ;  McDonald  v.  Neilson,  2  Cow. 
139,  14  Am.  Dec.  431;  Tripp  v.  Cook,  26  Wend.  143;  Casler  v.  Shipman, 
35  N.  Y.  533;  N.  Y.  &  N.  H.  R.  R.  v.  Schuyler,  38  Barb.  534,  554;  Finch 
v.  Finch,  10  Ohio  St.  501,  507.  In  this  case  the  court  say  that  the  prin- 
ciple does  not  apply,  "unless  the  mutual  equities  supposed  by  the  maxim 
arise  out  of  the  subject-matter  of  the  suit,  and  are  such  as  have  a  founda- 
tion in  established  rules  of  law  or  of  equity.  The  maxim  invests  courts 
of  equity  with  no  arbitrary  discretion."  There  are  cases  in  which  the 
court  has  disregarded  this  restrictive  feature  of  the  rule  laid  do\vn  in 
the  text.  Thus,  Secrest  v.  McKenna,  1  Strob.  Eq.  356,  was  a  suit  for  the 
specific  performance  of  a  conti-act  for  the  sale  of  land,  brought  by  the 
1—46 


§  388  EQUITY    JURISPRUDENCE.  722 

§  388.  Is  a  General  Rule  Regulating  Equitable  Reliefs.— 
With  this  explanation  of  its  scope  and  meaning,  it  may  be 
regarded  as  a  universal  rule  governing  the  court  of  equity 
in  the  administration  of  its  remedies,  that  whatever  may 
be  the  nature  of  the  relief  sought  by  the  plaintiff,  the  equi- 
table rights  of  the  defendant,  growing  out  of  or  intimately 
connected  with  the  subject  of  the  controversy  in  question, 
will  be  protected;  and  for  this  purpose  the  plaintiff  will 
be  required,  as  a  condition  to  his  obtaining  the  relief  which 
he  asks,  to  acknowledge,  admit,  provide  for,  secure,  or  allow 
whatever  equitable  rights  (if  any)  the  defendant  may  have, 
and  to  that  end  the  court  will,  by  its  affirmative  decree, 
award  to  the  defendant  whatever  reliefs  may  be  necessary 
in  order  to  protect  and  enforce  those  rights.  This  prin- 
ciple is  not  confined  to  any  particular  kind  of  equitable 
rights  and  remedies,  but  pervades  the  entire  equity  juris- 
prudence, so  far  as  it  is  concerned  with  the  administration 
of  equitable  remedies.  ^  * 

vendee.  The  plaintiff  had  fully  paid  the  purchase  price,  and  was  clearly 
entitled  to  the  usual  decree  for  a  conveyance,  so  far  as  the  agreement  itself 
was  concerned.  But  defendant  had  become  a  surety  on  the  official  bond 
of  the  plaintiff  as  a  sheriff,  and,  as  such  surety,  had  incurred  liabilities  on 
behalf  of  the  plaintiff,  which  still  remained  undischarged.  On  this  ground 
the  defendant  had  refused  to  fulfill  his  agreement  by  conveying  the  land. 
The  court  sustained  the  defendant's  contention,  and  refused  to  grant  the 
relief  sought  by  the  plaintiff,  expressly  on  account  of  the  plaintiff's 
pecuniary  liability  arising  from  the  sheriff's  bond,  saying:  "It  is  a  settled 
principle  of  the  court  not  to  grant  merely  equitable  relief  without  requiring 
the  party  asking  it  to  do  equity  himself, — to  do  what  is  morally  right, — of 
which  many  examples  might  be  given."  This  decision,  plainly,  cannot  be 
sustained,  in  view  of  the  overwhelming  weight  of  opposing  authority, 
English  and  American.     See,  also,  "Walling  v.  Aiken,  1  McMull.  Ch.  1. 

§  388,  1  Com.  Dig.,  tit.  Chancery,  3,  F,  3,  citing  Towers  v.  Da^-ys,  1 
Vern.  480;  Bradburne  v.  Amand,  2  Carth.  87;  Smithson  v.  Thompson,  1 
Atk.  520;  Shish  v.  Foster,  1  Ves.  Sr.  88;  Shuttleworth  v.  Layeock,  1  Vern. 
244;  Kirkbam  v.  Smith,  1  Ves.  Sr.  258;  Anonymous,  2  Show.  282;  Lady 

§388,   (a)   The  text  is  quoted  with  Allen  v.  McMannes,  156  Fed.  615;  in 

approval    in    Chaney   v.    Coleman,    77  Levy   v.    Stofella,    14   Ariz.    262,    127 

Tex.  100, 13  S.  W.  850;  State  v.  Sny-  Pac.    725;    in    Dreyer    v.    Southard 

der,   66   Tex.   687,   18   S.   W.   106;    in  (Tex.  Civ.  App.),  148  S.  W.  1103;  in 


723  HE    WHO    SEEKS    EQUITY    MUST   DO    EQUITY.  §  389 

§389.  Illustrations:  The  Wife's  Equity.— Having  thus 
explained  the  principle  in  its  generality,  I  shall  now,  by 
way  of  illustration,  state  some  of  the  instances  in  which 
it  has  been  applied.  The  most  common  and  striking  in- 
stance, at  all  events  in  England,  is  the  "wife's  equity,"  so 
called.  By  the  common  law  the  husband  became  absolute 
owner  of  all  the  wife's  moneys,  goods,  and  chattels,  and 
things  in  action  which  he  had  reduced  to  possession,  and 
estates  for  years,  and  acquired  a  life  interest  in  all  her  free- 
hold estates,  and  was  entitled  to  their  rents  and  profits. 
The  only  mode  of  securing  any  of  her  property  to  her  own 
use  during  the  marriage  was  by  a  marriage  settlement. 
Courts  of  equity  have,  from  a  very  early  period,  provided 
the  wife  a  remedy  against  these  harsh  doctrines  of  the  com- 
mon law,  where  no  proper  settlement  had  already  been  made 
by  the  parties,  by  giving  her  a  right  to  a  provision  out  of 
her  own  property,  when  the  circumstances  were  such  that 
the  principle,  he  who  seeks  equity  must  do  equity,  could  be 
applied;  and  this  right  is  known  as  her  "equity  to  a  set- 
tlement." 1  This  right  of  the  wife  was  first  recognized  in 
cases  where  the  husband  himself,  or  his  assignee  or  cred- 

Elibank  v.  Montolieu,  5  Ves.  737;  Murray  v.  Lord  Elibank,  10  Ves.  84, 
1  Lead.  Cas.  Eq.,  4th  Am.  ed.,  623,  639,  670,  and  notes;  Peacock  v.  Evans, 
16  Ves.  512;  Fanning  v.  Dunham,  5  Johns.  Ch.  122,  9  Am.  Dec.  283; 
Lanning  v.  Smith,  1  Pars.  Cas.  16;  Corby  v.  Bean,  44  Mo.  379;  Richard- 
son V.  Linney,  7  B.  Mon.  574;  Sporrer  v.  Eifler,  1  Heisk.  636;  Mumford 
V.  Am.  Life  Ins.  &  T.  Co.,  4  N.  Y.  463,  483;  N.  Y.  &  Harlem  R.  R.  v. 
Mayor,  etc.,  1  Hilt.  562,  587;. Linden  v.  Hepburn,  3  Sand.  668;  Creath's 
Adm'r  v.  Sims,  5  How.  192,  204;  Lewis  v.  Baird,  3  McLean,  56,  83. 

§  389,  1  See  Jewson  v.  Moulson,  2  Atk.  417,  per  Lord  Hardwicke ;  and 
Sturgis  V.  Champneys,  5  Mylne  &  C.  101,  105,  per  Lord  Cottenham. 

Kilbornv.  Johnson  (Tex.  Civ.  App.),  517,     140     Pac.     495;      Holland     v. 

164  S.  W.  1108;  in  Kowan  v.  Texas  Hotchkiss,    162    Cal.    366,    L.    R.    A. 

Orchard  Development  Co.  (Tex.  Civ.  1915C,  492,  123  Pac.  258  (cancellation 

App.),   181  S.  W.  871;   and   cited  in  of   tax   sale);    Reiger   v.   Turley,   151 

Price  V.   Stratton   (Fla.),  33  South.  Iowa,  491,  131  N.  W.  866;  St.  Louis 

644;    Swope   v.    Missouri    Trust   Co.,  &  S.  F.  B.   Co.  v.  Richards,   23   Okl. 

26    Tex.    Civ.    App.  .133,    62    S.    W.  256,  23  L.  E.  A.   (N.  S.)    1032,  102 

947;.   Provident.   Mutual     Building-  Pac.  92. 
Loan  Assn.   v.  Schwertner,  15   Ariz. 


§  389  EQUITY    JURISPRUDENCE.  724 

itor,  or  some  other  party  claiming  under  or  through  him, 
resorted  to  the  court  as  plaintiff,  and  sought  its  aid  to  en- 
force the  husband's  legal  interest,  and  thus  to  obtain  pos- 
session of  property  belonging  to  the  wife.  Avowedly  act- 
ing upon  the  rule  under  discussion,  the  court  established 
the  doctrine  that  it  would  always  require,  as  a  condition  of 
its  granting  the  relief,  that  an  adequate  part  of  the  prop- 
erty should  be  secured  to  the  wife  by  a  settlement.^  Sub- 
sequently the  court  took  a  further  step,  and  allows  the  wife, 
as  plaintiff,  under  proper  circumstances,  to  assert  her  equi- 
table right  by  a  suit  in  her  own  name.^  It  may  therefore 
be  regarded  as  the  established  general  rule  of  equity, 
whether  the  wife  is  plaintiif  suing  on  her  own  account,  or 
the  husband  or  some  other  party  claiming  under  him  is  the 
plaintiff  suing  to  reach  the  property,  if  the  wife's  property 
is  within  the  reach  of  the  court,  as  if  it  is  vested  in  trustees, 
or  has  been  paid  into  court,  or  is  in  any  other  situation 
which  brings  it  within  the  control  of  the  court,  it  will  not 
be  permitted  to  be  removed  out  of  that  jurisdiction  and 
control  until  an  adequate  provision  is  made  for  the  wife,  un- 
less she  has  already  been  sufficiently  provided  for,  or  on 
her  personal  examination  she  waives  her  right. ^     This  same 

§  389,  2  Bosvil  V.  Brander,  1  P.  Wms.  459. 

§  389,  3  Lady  Elibank  v.  Montolieu,  5  Ves.  737 ;  Sturgis  v.  Champneys, 

5  Mylne  &  C.  101,  105;  Hanson  v.  Keating,  4  Hare,  1,  6;  Eedes  v.  Eedes, 
11  Sim.  569 ;  Osbom  v.  Morgan,  9  Hare,  432,  434. 

§  389,  4  1  Lead  Cas.  Eq.,  4th  Am.  ed.,  623,  639,  670,  and  notes;  Macau- 
ley  V.  Philips,  4  Ves.  19;  Burden  v.  Dean,  2  Ves.  607;  Oswell  v.  Probert, 
2  Ves.  680;  Turner's  Case,  1  Vern.  7,  and  notes;  Ball  v.  Montgomery,  4 
Brown  Ch.  338;  Pryor  v.  Hill,  4  Brown  Ch.  139;  Brown  v.  Clark,  3  Ves. 
166;  Freeman  v.  Parsley,  3  Ves.  421;  Mitford  v.  Mitford,  9  Ves.  87; 
Wright  V.  Morley,  11  Ves.  12 ;  Elliott  v.  Cordell,  5  Madd.  149 ;  Vaughan  v. 
Buck,  13  Sim.  404;  Stanton  v.  Hall,  2  Russ.  &  M.  175;  WHkinson  v. 
Charlesworth,  10  Beav.  324 ;  Tidd  v.  Lister,  10  Hare,  140,  3  De  Gex,  M.  & 
G.  857,  870;  Ex  parte  Norton,  8  De  Gex,  M.  &  G.  258;  Gleaves  v.  Paine, 
1  De  Gex,  J.  &  S.  87;  Spirett  v.  Willows,  3  De  Gex,  J.  &  S.  293,  L.  R.  1 
Cb.  520,  522;  Coster  v.  Coster,  9  Sim.  597;  Bagsbaw  v.  Winter,  5  De  Gex 

6  S.  466 ;  Ex  parte  Pugh,  1  Drew.  202 ;  Napier  v.  Napier,  1  Dru.  &  War. 
407;  Scott  V.  Spashett,  3  Macn.  &  G.  599;  Gilchrist  v.  Cator,  1  De  Gex 


725  HE    WHO    SEEKS    EQUITY    MUST    UO    EQUITY.  §  389 

rule  was  adopted  and  occasionally  enforced  in  many  of  the 
American  states,  at  a  time  when  the  common-law  doctrines 
concerning  the  property  relations  between  husband  and  wife 
were  still  unaltered,  that  is,  prior  to  the  modern  legislation 
as  to  married  women's  property.^  The  importance  of  the 
rule,  however,  has  been  greatly  lessened  in  England,  and 
the  rule  itself  has  certainly  become  entirely  useless  and 
obsolete  in  a  great  majority,  if  not  indeed  in  all,  of  the 
states,  from  the  effect  of  modern  legislation.  Recent  stat- 
utes in  nearly  all,  if  not  quite  all,  the  states  have  deprived 
the  husband  of  all  interest  in  his  wife's  property  during  the 
marriage,  have  secured  to  her  a  perfect  title  in  it,  have 
removed  it  from  all  claims  of  her  husband  and  of  his  cred- 
itors, have  placed  it  under  her  exclusive  control  and  sepa- 
rate use,  and  have  generally  given  her  full  power  or  dis- 
position over  it. 6  It  is  perfectly  obvious,  therefore,  that 
no  circumstances  could  possibly  arise  under  which  the  rule 
could  be  invoked  and  enforced  on  behalf  of  a  married 
woman,  in  order  to  secure  her  own  property,  since  it  is 
already  more  completely  secured  to  her  by  the  statutes,  and 
neither  the  husband,  nor  his  assignee,  nor  his  creditors, 

&  S.  188;  Dunkley  v.  Dunkley,  2  De  Gex,  M.  &  G.  390,  396;  Barrow  v. 
Barrow,  5  De  Gex,  M.  &  G.  782;  In  re  Ford,  32  Beav.  621;  Marshall  v. 
Fowler,  16  Beav.  249 ;  Carter  v.  Taggart,  1  De  Gex,  M.  &  G.  286. 

§  389,  5  Kenny  v.  Udall,  5  Johns.  Ch.  464;  Haviland  v.  Bloom,  6  Johns. 
Ch.  178,  180;  Davis  v.  Newton,  6  Met.  544;  Howard  v.  Moffatt,  2  Johns. 
Ch.  206,  208;  Glen  v.  Fisher,  6  Johns.  Ch.  33,  36,  10  Am.  Dec.  310;  Page 
v.  Estes,  19  Pick.  269,  271;  Gassett  v.  Grout,  4  Met.  486,  489;  Gardner 
V.  Hooper,  3  Gray,  398;  Durr  v.  Bowyer,  2  MeCord  Eq.  368,  372;  Duvall 
V.  Farmers'  Bank,  4  Gill  &  J.  283,  290,  23  Am.  Dec.  558;  Groverman  v. 
Diffenderffer,  11  Gill  &  J.  15,  22;  Tucker  v.  Andrews,  13  Me.  124,  128; 
Chase  v.  Palmer,  25  Me.  342,  348;  Short  v.  Moore,  10  Vt.  446,  451;  Barroa 
V.  Barron,  24  Vt.  375;  Smith  v.  Kane,  2  Paige,  303. 

§  389,  6  Statutes  substantially  to  the  effect  described  in  the  text  are 
found  in  the  following  states:  New  York,  California,  Texas,  Louisiana, 
Illinois,  Iowa,  Kansas,  Massachusetts,  Michigan,  Nebraska,  New  Hamp- 
shire, Maine,  Wisconsin,  Alabama,  Florida,  Kentucky,  IMaryland,  Minne- 
sota, New  Jersey,  Oregon,  Ohio,  Pennsylvania,  Rhode  Island,  Tennessee, 
Vermont,  and  without  doubt  in  others. 


§§390,391  EQUITY    JURISPRUDENCE.  726 

could  ever  maintain  a  suit  in  equity  for  the  purpose  of 
reaching  it.^ 

§  390.  Equitable  Estoppel. — As  another  example  of  the 
application  of  the  principle:  If  the  owner  of  an  estate 
stands  by  and  suffers  another  person,  who  is  ignorant  of 
his  title  or  supposes  himself  to  be  entitled,  to  go  on  and 
expend  money  upon  the  estate,  either  by  erecting  buildings 
or  by  making  other  improvements,  a  court  of  equity  will 
compel  such  owner,  when  he  afterwards  comes  into  it  to 
assert  his  title,  to  indemnify  the  one  who  made  the  expend- 
iture, either  by  making  a  pecuniary  compensation,  or  in 
some  cases,  if  the  expenditure  were  by  a  lessee  under  a 
defective  lease,  by  confirming  and  establishing  the  leasehold 
interest.!  ^ 

§  391.  Usury. — Another  remarkable  application  of  the 
principle  is  seen  in  the  action  of  the  courts  towards  parties 
seeking  its  aid  under  the  statutes  against  usury.  Wlierever 
the  statutes  have  made  usurious  loans  and  obligations  abso- 
lutely void,  if  a  borrower  brings  a  suit  in  equity  for  the 
purpose  of  having  a  usurious  bond  or  other  security  sur- 
rendered up  and  canceled,  the  relief  will  be  granted  only 
upon  condition  that  the  plaintiff  himself  does  equity  by 
repaying  to  his  creditor  what  is  justly  and  in  good  faith 
due,  that  is,  the  amount  actually  advanced,  with  lawful 
interest;  unless,  indeed,  the  statute  has  gone  so  far  as  to 
expressly  prohibit  the  court  from  imposing  such  terms  as 

§  390,  1  If  the  owner  should  resort  to  a  court  of  law  and  bring  an  ac- 
tion of  ejectment,  a  court  of  equity,  at  the  suit  of  the  party  making  the 
expenditure,  would  work  out  the  equitable  principle  by  restraining  the 
ejectment  until  compensation  was  made :  See  Powell  v.  Thomas,  6  Hare, 
300;  Ramsden  v.  Dyson,  L.  R.  1  H.  L.  Cas.  129. 

§389,    (a)    For   a   discussion    more  §390,    (a)    For   a   similar   applica- 

in    detail    of    the    wife's    equity,    see       tion   see    Broumel   v.    White,   87    Md. 
§§    1114-1118.     This      paragraph      is       521,  39  Atl.  1047.     See,  also,  §  818. 
cited,  by  way  of  illustration,  in  Allen 
V.  McMannes,  156  Fed.  615. 


727 


HE    WHO    SEEKS    EQUITY    MUST    DO    EQUITY. 


§391 


the  price  of  its  relief.ia  The  same  principle  has  been  ap- 
plied to  a  lender  seeking  the  aid  of  the  court  to  reform  a 
security  tainted  with  usury.2  The  case  is  entirely  different, 
and  another  maxim  governs  its  decision,  when  the  lender 
sues  in  a  court  of  equity  to  enforce  a  usurious  obligation. 
The  borrower  may  set  up  the  defense  and  defeat  the  suit, 

§  391,  I  Fanning  v.  Dunham,  5  Johns.  Ch.  122,  142,  143,  144,  9  Am. 
Dec.  283 ;  Rogers  v.  Rathbun,  1  Johns.  Ch.  367 ;  Williams  v.  Fitzhugh,  37 
N".  Y.  444;  Ballinger  v.  Edwards,  4  Ired.  Eq.  449;  Ware  v.  Thompson,  13 
N.  J.  Eq.  66 ;  Ruddell  v.  Ambler,  18  Ark.  369 ;  Noble  v.  Walker,  32  Ala. 
456;  Sporrer  v.  Eifler,  1  Heisk.  633,  636;  Mason  v.  Gardiner,  4  Brown 
Ch.  436.  An  amendment  to  the  New  York  statute  took  away  from  the 
court  the  power  of  imposing  such  terms  upon  the  bon-ower.  See  Bissell 
V.  Kellogg,  60  Barb.  617.»» 

§  391,  2  Corby  v.  Bean,  44  Mo.  379.  By  the  statute  of  Missouri,  usuri- 
ous contracts  are  not  void  in  toto,  but  only  as  to  the  excess  above  the  leyal 
interest.  Plaintiff  brought  the  suit  for  the  refonnation  of  a  trust  deed, 
which,  as  appeared,  had  been  given  in  the  nature  of  a  mortgage,  to  secure 
the  payment  of  a  promissory  note  upon  which  usurious  interest  had  been 
charged.  Before  the  court  would  grant  the  relief  of  reformation,  it  com- 
pelled the  plaintiff  to  produce  the  note,  and  rebate  the  usurious  interest. 


§  391,  (a)  The  text  is  quoted  in 
Kemper  v.  Campbell,  44  Ohio  St.  210, 
216,  6  N.  E.  566;  cited  in  Scott  v. 
Austin,  36  Minn.  460,  32  N.  W.  89; 
American  Freehold  L.  &  M.  Co.  v. 
Sewell,  92  Ala.  163,  13  L.  E.  A.  299, 
9  South.  143.  See,  also,  Ferguson  v. 
Soden,  111  Mo.  208,  33  Am.  St.  Rep. 
512.,  19  S.  W.  727;  American  Freehold 
L.  &  M.  Co.  V.  Jefferson,  69  Miss.  770, 
30  Am.  St.  Eep,  587,  12  South.  464; 
Cook  V.  Patterson,  103  N.  C.  127,  9 
S.  E.  402;  Euppel  v.  Missouri  Guar- 
antee, S.  &  B.  Ass'n,  158  Mo.  613,  59 
S.  W.  1000.  .See,  further,  Kush  v. 
Pearson,  92  Miss.  153,  45  South.  723 ; 
Gund  V.  Ballard,  73  Neb.  547,  103 
N.  W.  309;  Bolen  v.  Wright,  89  Neb. 
116,  131  N.  W.  185;  Owens  v.  Wright, 
161  N.  C.  127,  Ann.  Caa.  1914D,  1021, 


76  S.  E.  735;  Corey  v.  Hooker,  171 
N.  C.  229,  88  S.  E.  236  (though  stat- 
ute declares  all  interest  forfeited). 

§  391,  (b)  Arkansas  has  a  similar 
statute:  Lowe  v.  Loomis,  53  Ark. 
454,  14  S.  W.  674;  and  Minnesota: 
Scott  V.  Austin,  36  Minn.  460,  32 
N.  W.  89,  864;  Exley  v.  Berryhill,  37 
Minn.  182,  33  N.  W.  567;  Mathews 
V.  Missouri,  K.  &  T.  Trust  Co., 
69  Minn.  318,  72  N.  W.  121;  Mis- 
souri, K.  &  T.  Co.  V.  Krumseig,  172 
U.  S.  359,  19  Sup.  Ct.  182;  S.  C.  77 
Fed.  32,  23  C.  C.  A.  1,  citing  the  au- 
thor's note.  Alabama:  Code  1907, 
§  4623,  provides  that  payment  of 
legal  interest  on  the  debt  cannot  be 
exacted:  First  Nat.  Bank  v.  Clark, 
161  Ala.  497,  49  South.  807;  Barclift 
V.  Fields,  145  Ala.  264,  41  South.  84. 


§  392  EQUITY    JURISPRUDENCE.  728 

without  repaying  any  amount.^  c  The  rule  extends  to  all 
cases  where  a  party  seeks  to  have  a  contract  set  aside  and 
canceled  on  the  ground  of  its  illegality  in  violating  the  pro- 
visions of  some  statute ;  the  court  will  require  him,  as  a  con- 
dition to  its  granting  the  relief,  to  pay  what  is  really  due 
on  the  agreement,  unless  the  illegality  is  a  malum  in  se,  or 
the  statute  itself  prevents  the  imposition  of  such  terms. ^  ^ 

§  392.  Other  Special  Instances. — It  is  also  an  application 
of  the  principle,  that  where  there  has  been  some  misde- 
scription of  the  property  on  the  part  of  the  vendor,  a  court 
of  equity  will  not  decree  a  specific  performance  of  the  con- 
tract at  his  suit,  except  upon  the  terms  that  he  makes 
proper  compensation  for  the  injury  which  the  defendant 
has  sustained  from  the  misdescription. ^  Indeed,  it  is  also 
by  virtue  of  the  rule,  that  the  decree  is  made  in  all  suits 
for  specific  performance  of  contracts,  the  plaintiff,  whether 
purchaser  or  vendor,  being  compelled  to  perform  his  part 
of  the  agreement  as  a  condition  to  his  obtaining  relief 
against  the  defendant.^  The  same  is  true  with  respect  to 
the  relief  granted  in  suits  for  redemption  brought  either 

§  391,  3  The  maxim,  He  who  comes  into  a  court  of  equity  must  come 
with  clean  hands,  applies  to  the  plaintiff  in  this  case:  Mason  v.  Gardiner, 
4  Brown  Ch.  437;  Union  Bank  v.  Bell,  14  Ohio  St.  200;  Kuhner  v.  Butler, 
11  Iowa,  419;  Hart  v.  Goldsmith,  1  Allen,  145;  Smith  v.  Robinson,  10 
Allen,  130 ;  Sporrer  v.  Eifler,  1  Heisk.  633,  636. 

§  391,  4  Mumford  v.  Am.  Life  Ins.  &  T.  Co.,  4  N.  Y.  463,  483.  See, 
as  to  relief  in  case  of  illegal  transactions,  the  next  section. 

§  392,  1  Hughes  v.  Jones,  3  De  Gex,  F.  &  J.  307,  315 ;  KnatchbuU  v. 
Grueber,  1  Madd.  153;  Scott  v.  Hanson,  1  Russ.  &  M.  128;  Richardson  v. 
Smith,  L.  R.  5  Ch.  648;  Shaw  v.  Vincent,  64  N.  C.  690;  Davison  v.  Per- 
rine,  22  N.  J.  Eq.  87;  Foley  v.  Crow,  37  Md.  51. 

§  392,  2  Hanson  v.  Keating,  4  Hare,  1,  4,  5,  per  Wigram,  V.  C. 

§391,   (c)   See  Bigler  v.  Jack,  114  Investment    Co.,    [1907]    1    Ch.    300 

Iowa,  667,  87  N.  W.  700.  (borrower     from      an      unregistered 

§391,    (d)    Cited   to   this   point  in  money  lender  who  sues  to  get  back 

Dean  v.   Robertson,  64  Miss.   195,  1  the  securities  mortgaged  must  repay 

South.  159;  New  England  M.  S.  Co.  the   money   advanced   to    him).     For 

V.  Powell,  97  Ala.  483,  12  South.  55.  a  fuller  discussion  of  the  subject  of 

See,  also,  Lodge  v.  National  Union  this  paragraph,  see  §  937. 


729  HE    WHO    SEEKS   EQUITY    MUST    DO    EQUITY.  §  393 

by  a  mortgagor  or  by  a  subsequent  encumbrancer.^  a  And 
where  a  trustee  had  purchased  land  in  his  own  name,  but 
really  for  the  benefit  of  the  cestui  que  trust,  and  had  paid 
the  purchase-money  with  his  own  funds,  and  was  also  a 
creditor  of  the  cestui  que  trust  for  other  advances  made 
to  or  for  him,  it  has  been  held  that  such  beneficiary  could 
not  compel  a  conveyance  from  the  trustee  to  himself,  except 
upon  payment  of  his  entire  indebtedness,  as  well  that  grow- 
ing out  of  this  purchase  as  that  arising  from  the  other 
advances.'*^ 

§  393.  The  following  are  some  additional  miscellaneous 
examples :  A  contract  for  the  purchase  of  lands  was  made 
in  1854,  when  the  price  was  payable  in  gold.  Subsequently, 
when  the  value  of  the  premises  had  very  greatly  increased, 
and  after  the  passage  of  the  legal-tender  act,  the  purchaser 
offered  to  pay  the  price  in  the  United  States  legal-tender 
notes,  which  were  then  much  depreciated,  and,  upon  the 
vendor's  refusal,  brought  this  suit  to  compel  a  specific  per- 
formance.    The  supreme  court  held  that,  under  these  cir- 

§  392,  3  Lanning  v.  Smith,  1  Pars.  Cas.  16. 

§  392,  4  Com.  Dig.,  tit.  Chancery,  3,  F,  3,  citing  Bradburne  v.  Amand, 
2  Cas.  Ch.  87;  and  see  Walling  v.  Aiken,  1  McMull.  Ch.  1,  where  a  mort- 
gagor, on  condition  of  redeeming  the  mortgage,  was  compelled  to  pay  other 
and  separate  debts  which  he  owed  to  the  mortgagee.  I  doubt  the  correct- 
ness of  these  decisions.  It  is  certainly  difficult  to  reconcile  either  of  them 
with  the  established  doctrine  that  the  adverse  equities  must  both  be  con- 
nected with  the  subject-matter  of  the  suit. 

§392,   (a)   See  Levi  v.  Blackwell,  N.  W.  941.     In  support  of  the  text, 

35  S.  C.  511,  15  S.  E.  243.     Likewise,  see,  also,  Levy  v.  Stofella,  14  Ariz, 

a  suit  cannot  be  maintained  to  have  262,    127    Pac.    725;    Whitehead    v. 

a   deed   declared   a  mortgage  unless  Stevens  (Okl.),  152  Pac.  445. 

there  is  an  offer  to  redeem:  Mack  v.  §392,  (b)  The  text  is  cited  in  San 

Hill,  28  Mont.  99,  72  Pac.  307.     So,  Antonio  &  G,  S.  R'y  Co.  v.  San  An- 

in  a  suit  to  recover  stock  that  has  tonio  &  G.  R.  Co.,  25  Tex.  Civ.  App. 

been  pledged,  plaintiff  must  pay  the  167,   60  S.  W.  338;   and  in  Wells  v. 

amount    due,    notwithstanding    that  Francis,   7   Colo.  396,  4  Pac.  49,  56, 

by    the    technical    rule    of    law    the  where,  also,   the   correctness   of  this 

pledge   lien   has  been   extinguished:  extension  of  the  rule  is  questioned. 
Love    v.    Park,    95    Neb.    729,    14S 


§  393  EQUITY    JURISPRUDENCE.  730 

cumstances,  tlie  plaintiff  was  not  entitled  to  the  relief  ex- 
cept upon  the  condition  of  paying  the  price  in  gold.^  In 
states  where  a  court  of  equity  exercises  a  jurisdiction  to 
set  aside  or  to  restrain  the  collection  of  illegal  assessments 
or  taxes,  the  relief  will  not  be  granted  unless  the  plaintiff 
pays  such  portion  of  the  tax  or  assessment  as  is  lawful 
and  justly  due.^  a  Where  a  ward,  immediately  upon  com- 
ing of  age,  transferred  all  his  property  to  his  guardian  for 
an  inadequate  consideration,  and  released  the  guardian 
from  all  liabilities  growing  out  of  his  trust,  and  afterwards 
brought  a  suit  to  set  aside  and  cancel  such  conveyance,  and 
for  an  accounting,  the  relief  was  only  granted  upon  the 
terms  of  refunding  the  amount  thus  paid  by  the  guardian,  or 
giving  him  credit  for  such  amount  in  the  accounting.^  Some 
further  illustrations  may  be  found  in  the  foot-note. ^  ^ 

§  393,  1  Willard  v.  Tayloe,  8  Wall.  557;  Wales  v.  Coffin,  105  Mass.  328; 
McGoori  V.  Shirk,  54  111.  408. 

§  393,  2  Board  of  Com'rs  v.  Elston,  32  Ind.  27,  2  Am.  Rep.  327;  Smith 
V.  Auditor-General,  20  Mich.  398;  Merrill  v.  Humphrey,  24  Mich.  170; 
Morrison  v.  Hershire,  32  Iowa,  271;  Dean  v.  Charlton,  23  Wis.  590,  99 
Am.  Dec.  205. 

§  393,  3  Richardson  v.  Linney,  7  B.  Mon.  574. 

§  393,  4  An  invalid  tax  deed  of  the  plaintiff's  land  was  set  aside  as  a 

§  393,    (a)    People's  Nat.  Bank  v.  See,      on      thia      subject.      Pom. 

Marye,  191  U.  S.  272,  24  Sup.  Ct.  68;  Equit.  Eemedies,  chapter  "Injunction 

Koen    V.    Martin,    110    La.    242,    34  Against  Taxation." 
South.     429.     See,     also,     Cottle     v.    ■      §  393,  (b)  It  has  been  held  (citing 

Union   Pacific   E.    Co.,   201   Fed.    39,  the  editor's  note  to  the  second  edi- 

119  C.  C.  A.  371,  Kohlhamer  v.  Smie-  tion),  that  relief  to  the  plaintiff  may 

tanka,  239  Fed.  408;  Savings  &  Loan  be   conditioned    on   the   enforcement 

Society   v.   Burke,   151   Cal.    616,   91  of   a    claim    held   by    the   defendant 

Pac.  504;  Imperial  Land  Co.  v.  Im-  which   is   barred   by   the   statute    of 

perial  Irrigation  Dist.,  173  Cal.  660,  limitations:  Farmers'  Loan  &  T.  Co. 

161  Pac.  113.     But  where  the  tax  is  v.   Denver,   L.   &   G.   R.   R.   Co.,   126 

entirely  invalid,  the  rule,  of  course,  Fed.  46.     This  is  in  accordance  with 

does  not  apply:   Boals  v.   Bachman,  that  phase  of  the  principle  which  is 

201  111.  340,  66  N.  E.  336.     See,  also,  explained  ante,  end   of   §   386.     See, 

Clark    V,    Maher,    34    Mont.   391,    87  also.  Union  Central  Life  Ins.  Co.  v. 

Pac.  272   (the  maxim  does  not  com-  Drake,  214  Fed.  536,  131  C.  0.  A.  82, 

pel   the   tender   of   tax  on   property  citing   the   editor's   note    (may   give 

not  assessed,  as  condition  to  injunc-  defendant  benefit   of  a  claim  which 

tion  against  illegal  tax).  he  could  not  enforce  aflSrmatively) ; 


731 


HE    WHO    SEEKS    EQUITY    MUST    DO    EQUITY. 


§394 


§  394.    Is  the  Source  of  Certain  Equitable  Doctrines. — 
Thus  far  I  have  discussed  the  principle  in  the  view  taken  of 

cloud  upon  his  title,  only  upon  condition  that  he  refunded  all  the  taxes 


Bank  of  Alma  v.  Hamilton,  85  Neb. 
441,  133  Am.  St.  Rep.  676,  123  N.  W. 
458;  United  Cigarette  Machine  Co. 
V.  Brown,  119  Va.  813,  L.  R.  A. 
1917F,  1100,  89  S.  E.  850,  citing  this 
paragraph  of  the  text.  A  mortgagor 
seeking  to  quiet  title  against  an 
illegal  sale  under  the  mortgage  must 
offer  to  do  equity  by  paying  what  is 
equitably  due:  Johnston  v.  S.  F.  Sav. 
Union,  75  Cal.  134,  7  Am.  St.  Rep. 
129,  16  Pac.  753;  Loney  v.  Courtnay, 
24  Neb.  580,  39  N.  W.  616;  even 
though  the  statute  of  limitations  has 
barred  the  debt;  Booth  v.  Haskins, 
75  Cal.  271,  17  Pac.  225;  De  Cazara 
V.  Orena,  80  Cal.  132,  22  Pac.  74; 
Hall  V.  Arnot,  80  Cal.  348,  22  Pac. 
200.  The  same  is  true  of  relief 
against  other  void  judicial  sales: 
Galveston,  etc.,  R.  R.  Co.  v.  Blake- 
ney,  73  Tex.  180,  11  S.  W.  174; 
Eobertson  v.  Bradford,  73  Ala.  116. 
A  mortgagor  who  seeks  to  cancel  a 
mortgage  on  his  homestead  as  a 
cloud  on  his  title,  on  the  general 
ground  of  defects  in  its  execution 
and  acknowledgment,  must  offer  to 
do  equity  by  refunding  the  mort- 
gage money  with  lawful  interest: 
Grider  v.  American  Freehold  L.  & 
M.  Co.,  99  Ala.  281,  42  Am.  St.  Rep. 
58,  12  South.  775.  And,  in  general, 
while  the  cases  are  somewhat  con- 
flicting, an  unsatisfied  mortgage  se- 
curing a  debt  barred  by  the  statute 
of  limitations  cannot  be  removed  as 
a  cloud  on  title  unless  the  plaintiff 
pays  or  tenders  the  debt,  or  recog- 
nizes it  as  constituting  an  existing 
lien:  Power  &  Irr.  Co.  v.  Capay 
Ditch  Co.,  226  Fed.  634,  141  C.  C.  A. 
390     (bill     to     redeem) ;     Provident 


Mutual  Building  Loan  Ass'n  v. 
Schwertner,  15  Ariz.  517,  140  Pac. 
495;  Sturdivant  v.  MeCorley,  &'3 
Ark.  278,  11  L.  R.  A.  (N.  S.)  825, 
and  note,  103  S.  W.  732  (grantor 
of  land  as  security,  seeking  aid 
of  equity  to  defeat  grantee's  eject- 
ment, must  recognize  debt  as  exist- 
ing lien) ;  Burns  v.  Hiatt,  149  Cal. 
617,  117  Am.  St.  Rep.  157,  87  Pac. 
196;  Marschutz  v.  Seltzor,  5  Cal. 
App.  140,  89  Pac.  877;  Cory  v. 
Santa  Ynez  Land  &  Imp.  Co.,  151 
Cal.  778,  91  Pac.  647  (mortgagee  in 
possession  cannot  be  ousted  until 
debt  is  paid) ;  Green  v.  Thornton,  8 
Cal.  App.  160,  96  Pac.  382  (same; 
Baggio  V.  Palmtag,  155  Cal.  797,  103 
Pac.  312  (same);  Bulson  v.  Moffatt, 
173  Cal.  685,  161  Pac.  259;  Hobson 
V.  Huxtable,  79  Neb.  340,  116  N.  W. 
278  (where  defendant  ia  entitled  to 
be  subrogated  to  the  mortgage) ; 
Barney  v.  Chamberlain,  84  Neb.  785, 
124  N.  W.  482;  Pettit  v.  Louis,  88 
Neb.  496,  34  L.  R.  A.  (N.  S.)  356, 
129  N.  W.  1005  (mortgagee  in 
possession  cannot  be  ousted  until 
debt  is  paid) ;  Tracy  v.  Wheeler, 
15  N.  D.  248,  6  L.  R.  A.  (N.  S.) 
516,  107  N.  W.  68;  Cotton  v.  Ilor- 
ton,  22  N.  D.  1,  132  N.  W.  225; 
Keller  v.  Souther,  26  N.  D.  358, 
L.  R.  A.  1916B,  1218,  144  N.  W.  671. 
In  accordance  with  the  same  gen- 
eral principle,  an  insurance  com- 
pany, suing  to  cancel  a  policy  for 
fraud,  must  return  the  premiums, 
though  the  insured  could  not  sue  to 
recover  them:  Metropolitan  Life 
Tns.  Co.  V.  Freedman,  159  Mich.  114, 
32  L.  R.  A.  (N.  S.)  298,  123  N.  W. 
547,    and    cases    collected    in    note. 


§394 


EQUITY   JURISPRUDENCE. 


732 


it  by  the  great  majority  of  judicial  opinions,  namely,  as  a 
universal  rule  guiding  the  court  of  equity  in  its  administra- 

which  had  been  advanced  or  paid  by  the  party  to  whom  the  deed  was 


And  the  exercise  of  an  invalid 
power  of  attorney  to  collect  future 
wages  cannot  be  enjoiued,  unless 
plaintiff  pays  the  defendant  the 
money  due  him:  Cox  v.  Hughes,  10 
Cal.  App.  553,  102  Pae.  956.  And 
an  infant  seeking  to  set  aside  a 
mortgage  on  the  theory  that  the 
defendant  is  a  non-resident  corpora- 
tion and  had  no  power  to  make  the 
loan  must  tender  the  amount  due 
under  the  mortgage:  Coburn  v.  Coke, 
193  Ala.  364,  69  South.  574. 

One  who  seeks  the  reformation  of 
a  deed  in  his  own  favor  will  be  de- 
nied relief,  unless  he  is  willing  that 
other  mistakes  in  the  deed  be  re- 
formed in  favor  of  the  defendants: 
Morisey  v.  Swinson,  104  N.  C.  555, 
10  S.  E.  754.  If  a  husband,  after 
voluntarily  conveying  property  to 
his  wife,  again  conveys  the  same 
property  in  trust  to  secure  money 
advanced  at  his  request  to  discharge 
an  existing  lien  against  the  prop- 
erty, the  deed  of  trust  cannot  be  set 
aside  as  a  cloud  on  the  wife's  title, 
unless  the  money  so  advanced  is  re- 
paid: Martin  v.  Martin,  164  111.  640, 
56  Am.  St.  Rep.  219,  45  N.  E.  1007. 
In  Interstate  Sav.  &  L.  Ass'n  v. 
Badgley,  115  Fed.  390,  the  maxim 
was  applied,  and  the  court  held  that 
a  complaint  by  a  savings  and  loan 
association  to  foreclose  a  mortgage 
was  without  equity,  where  it  ap- 
peared that  in  order  to  procure  the 
loan  the  mortgagor  was  obliged  to 
subscribe  for  stock,  and  that  the 
withdrawal  value  of  the  stock,  plus 
the  premiums  paid  by  the  mortga- 
gor, etc.,  more  than  equaled  the  face 
of  the  loan,   and  that  the  interest 


paid  on  the  average  balance  due 
on  the  loan  amounted  to  about 
twelve  per  cent.  See  the  follow- 
ing cases  for  miscellaneous  illustra- 
tions: Neal  V.  Briggs,  110  Fed. 
477;  Allen  v.  McMannes,  156  Fed. 
615  (a  court  of  bankruptcy  in  set- 
ting aside  a  voidable  preference 
may  enforce  the  equities  of  defend- 
ant against  the  other  creditors) ; 
Hobbs  T.  Nashville,  C.  &  St.  L. 
R'y  Co.,  122  Ala.  602,  82  Am.  St. 
Eep.  103,  26  South.  739;  Taylor  v. 
Dwyer,  131  Ala.  91,  32  South.  509; 
De  Walsh  v.  Braman,  160  HI.  415, 
43  N.  E.  597;  Springfield  Traction 
Co.  V.  Warrick,  249  111.  470,  Ann. 
Cas.  1912A,  187,  94  N.  E.  933  (in- 
junction sought  to  restrain  action  of 
ejectment  brought  for  breach  of  con- 
dition subsequent;  equity  may  im- 
pose as  condition  of  the  injunction 
that  complainant  -pay  damages  for 
breach  of  covenant) ;  Wicks  v.  Dean, 
103  Ky.  69,  44  S.  W.  397;  Bunnell 
v.  Bunnell,  23  Ky.  L.  Rep.  800,  64  S. 
W.  420;  Anderson  v.  McXeal  (Miss.), 
34  South.  1;  Hanson  v.  Neal,  215  Mo. 
256,  114  S.  W.  1073  (suit  to  set  aside 
sale  under  trust  deed) ;  Trenton 
Pass.  R'y  Co.  v.  Wilson  (N.  J.),  40 
Atl.  597;  San  Antonio  &  A.  P.  R'y 
Co.  v.  Gurley  (Tex.),  47  S.  W.  513; 
Harrison  v.  Manson,  95  Va.  593,  29 
S.  E.  420;  Ensign  v.  Batterson 
(Conn.),  36  Atl.  51.  For  the  im- 
portant application  of  the  maxim  to 
parties  seeking  rescission  or  cancel- 
lation of  transactions  on  the  ground 
of  fraud,  mistake,  etc.,  and  the  equi- 
table theory  of  restoring  all  the  par- 
ties to  their  original  position,  see 
§  910,    and    Pom.    Equit.    Remedies, 


733  HE    WHO    SEEKS    EQUITY    MUST    DO    EQUITY.  §  394 

tion  of  every  kind  of  relief,  and  to  be  applied  in  practice 
according  to  the  circumstances  of  the  particular  case  be- 
fore the  court  for  decision.  In  this  aspect  of  the  principle 
it  is  not  regarded  as  the  source  of  any  special  doctrine  of 
the    equity  jurisprudence,  nor  as  the    foundation  of    any 

given:  Reed  v.  Tyler,  56  111.  288.®  A  co-surety,  asking  to  be  relieved 
from  a  judgment  against  him  for  the  whole  demand  secured,  can  only 
obtain  the  relief  by  paying  his  own  contributory  portion  of  the  debt : 
Creed  v.  Scruggs,  1  Heisk.  590.  A  widow  suing  for  her  dower  must 
account  for  the  use,  rent,  and  profits  of  the  land  which  she  has  occupied 
in  excess  of  her  third :  McLaughlin  v.  McLaughlin,  20  N.  J.  Eq.  190.  On 
the  other  hand,  if  the  heir  sues  to  set  aside  his  deed  to  the  widow,  and 
for  an  accounting,  he  must  allow  to  her  one-third  of  the  income  in  respect 
of  her  dower  right :  Ames  v.  Ames,  1  Cin.  Rep.  559.  A  plaintiff  suing  in 
equity  for  a  partition  must  contribute  his  proportion  of  a  mortgage  on 
the  land  which  had  been  paid  off  by  the  defendant :  Campbell  v.  Campbell, 
21  Mich.  438;  and  see  Comstock  v.  Johnson,  46  N.  Y.  615  {ante,  §  387,  in 
note) ;  Phillips  v.  Phillips,  50  Mo.  603;  Kinney  v.  Con.  Virginia  M.  Co.,  4 
Saw.  383;  Boskowitz  v.  Davis,  12  Nev.  446;  Scammon  v.  Kimball,  5  Biss. 
431;  Anderson  v.  Little,  26  N.  J.  Eq.  144;  Lohman  v.  Crouch,  19  Gratt. 
331;  Lanning  v.  Smith,  1  Pars.  Cas.  16.  It  is  held  that  the  principle  also 
applies  to  a  defendant  who  sets  up  an  affirmative  equitable  defense  claim- 
ing some  affirmative  relief,  since  he  is  then  in  exactly  the  same  position  as 
a  plaintiff:  See  Tongue  v.  Nutwell,  31  Md.  302.*     This  must  be  the  true 

chapter   on   "Cancellation."     For  its  163  Pac.  425;  but  see  Laffitte  v.  City 

application    to    the    cancellation    of  of  Superior,  142  Wis.  73,  125  N.  W. 

deeds,    etc.,    of    insane    persons,    see  105    (otherwise  where  right  of  tax- 

§  946,     For  its  application  in  behalf  title  claimant  has  been  extinguished 

of   persons   holding  under   defective  by  statute  of  limitations), 

title  who  in  good  faith  have  made  §  393,  («i)    Defendant   Claims  Af- 

improvements,  see  §  1241,  note.  firmative   Relief. — This    sentence    of 

§  393,  (c)    Setting   Aside    Invalid  the    note    is    quoted    in    Martin    v. 

Tax    Deed. — See,    also,    Hickman    v.  Spaulding,  40  Okl.  191,  137  Pac.  882, 

Kempner,  35  Ark.  505;  Alexander  v.  holding,  in  accordance  with  the  au- 

Merriek,  121  111.  606,  13  N.  E.  190;  thor's    statement    following,    that    a 

Peckham   v.  Millikan,   99   Ind.   352;  vendor,  defendant  in  a  suit  for  spe- 

Steuart  v.  Meyer,  54  Md.  454;  and  cific  performance,  who  sets  up  as  a 

the  recent  cases:  Elder  v.  Board  of  defense  that  he  elected  to  rescind  on 

Com'rs  of  Chaffee  County,  33   Colo.  account  of  the   delay  or  default  of 

475,  81  Pac.  244;  Wagner  v.  Under-  plaintiff,   and  who   asks   no   affirma- 

hill,  71  Kan.  637,  81  Pac.  177;  Mor-  tive  relief,  is  not  obliged  to  tender 

rison   v.   Semer,   164   Mich.   208,   129  the  portion  of  the  purchase  price  or 

N.  W.  1;  Bagley  v.  Bloch,  83  Or.  607,  other  consideration  received.    To  the 


§  395  EQUITY    JUEISPRUDENCE.  734 

special  equitable  interest  or  primary  right.  There  is,  how- 
ever, another  phase  of  the  principle ;  it  may  be  looked  upon 
in  another  light.  It  is  not  wholly  a  rule  for  the  guidance 
^of  the  equity  judge  in  measuring  out  and  apportioning  re- 
liefs among  litigants.  It  has  exercised  a  molding  influence 
in  the  development  of  important  branches  of  the  equity 
jurisprudence ;  certain  doctrines  are  plainly  derived  from  it 
as  their  chief,  though  not  perhaps  their  only,  source.  The 
full  scope  and  effect  of  such  doctrines  can  only  be  under- 
stood by  a  clear  perception  of  the  relations  which  connect 
them  with  this  their  common  origin.  I  shall  therefore  con- 
clude the  discussion  of  the  present  section  by  a  brief  men- 
tion of  the  doctrines  which  are  thus,  as  it.  seems  to  me, 
directly  referable  to  the  principle  that  he  who  seeks  equity 
must  do  equity. 

§  395.  Of  Election. — The  relation  which  plainly  connects 
all  these  doctrines  with  the  principle  in  question  is  the  fact 
that  the  equitable  right  or  interest  of  one  party,  recognized 
and  protected  by  each  of  them,  always  grows  out  of,  or  is 
necessarily  connected  with,  the  recognition  and  maintenance 

limitation  of  the  principle  in  its  application  to  defendants;  it  certainly 
does  not  and  cannot  apply  to  defendants  generally,  who  merely  seek  to 
defeat  the  plaintiff's  demand,  and  ask  no  affirmative  relief  for  themselves, 
either  directly  or  indirectly.  Por  example,  the  borrower,  when  sued  upon 
a  usurious  obligation,  may  set  up  the  defense  of  usury,  without  paying 
anything. 

same  effect,  Garbutt  &  Donovan  v.  relief,  and  should  be  granted  to  de- 
Mayo,  128  Ga.  269,  13  L.  R.  A.  fendant  without  imposing  the  con- 
(N.  S.)  58,  57  S.  E.  495;  and  espe-  dition,  by  way  of  doing  equity  to 
cially  City  of  Columbus  v.  Mercan-  the  bondholders  of  the  company, 
tile  Trust  &  Deposit  Co.  of  Balti-  that  the  city  should  purchase  por- 
more,  218  U.  S.  6-15,  54  L.  Ed.  1193,  tions  of  the  waterworks  system). 
31  Sup.  Ct.  105  (complainant  water  For  examjjle  of  application  of  maxim 
company  sued  to  enjoin  city  from  to  defendant's  cross-complaint  in 
constructing  municipal  waterworks  suit  to  quiet  title,  see  Kerr  v.  Me- 
in  violation  of  its  contract  with  Creary,  84  Neb.  315,  120  N.  W.  1117. 
complainant;  city  by  cross-bill  In  Charleston  &  W.  C.  E'y  Co.  v. 
sought  rescission  of  the  contract  for  Hughes,  105  Ga.  1,  70  Am.  St.  Rep. 
non-performance  by  complainant;  17,  30  S.  E.  972,  it  is  held  that  the 
held,  that  this  was  merely  defensive  maxim  applies  to  an  iuterveuor. 


735       -  HE    WHO    SEEKS    EQUITY    MUST    DO    EQUITY.  §  395 

of  the  equitable  right  or  interest  of  another  party  arising 
from  the  same  transaction  or  subject-matter.  In  other 
words,  the  equity  of  one  exists  by  the  operation  of  the  doc- 
trine only  because  the  equity  of  another  is  admitted  and 
provided  for  The  doctrine  itself  is  thus  based  upon  the 
preservation  of  reciprocal  or  correlative  equities.  The  first 
of  the  doctrines  which  I  shall  notice  is  that  of  election. 
This  doctrine  involves  the  notion  that  no  man  can  claim  in- 
consistent rights  with  regard  to  the  same  subject,  and  that 
any  one  who  asserts  an  interest  under  an  instrument  is 
bound  to  give  full  effect  to  that  instrument ;  he  cannot  both 
accept  and  reject  it,  or  avail  himself  of  its  benefits  as  to  a 
part,  and  defeat  its  provisions  as  to  other  parts.  Election 
then  originates  in  inconsistent  or  alternative  donations, — 
two  gifts,  with  the  intention,  express  or  implied,  that  one 
shall  be  a  substitute  for  the  other.  The  donee  is  entitled, 
not  to  both,  but  to  the  choice  of  either.^  The  doctrine  is 
applied  under  two  somewhat  differing  states  of  circum- 
stances, but  the  principle  is  the  same  in  each.  If  the  indi- 
vidual to  whom,  by  an  instrument  of  donation,  a  benefit  is 
offered  possesses  a  previous  claim  on  the  donor,  and  an 
intention  appears  that  he  shall  not  both  receive  the  donation 
and  enforce  the  claim,  he  is  required  by  the  doctrine  to 
elect  between  his  original  and  his  substituted  rights;  the 
gift  being  designed  as  a  satisfaction  of  the  claim,  he  cannot 
accept  the  former  without  renouncing  the  latter.  In  the 
second  case,  the  owner  of  an  estate  having,  in  an  instrument 
of  donation,  applied  to  the  property  of  another  expressions 
which,  were  that  property  his  own,  would  amount  to  an 
effectual  disposition  of  it  to  a  third  person,  and  having  by 
the  same  instrument  disposed  of  a  portion  of  his  own  estate 
in  favor  of  the  proprietor  whose  rights  he  assumed,  the 
doctrine  imposes  upon  that  proprietor  the  duty  of  electing 
either  to  relinquish  the  benefit  conferred  upon  him  by  the 
instrument,  if  he  asserts  his  own  inconsistent  proprietary 

§395,  (a)    The   text  is   quoted   in   Cooley    v.   Houston,   229   Pa.   St.   495, 
78  Atl.  1129. 


§  396  EQUITY    JUKISPRUDENCE.  736 

rights,  or  if  he  accepts  that  benefit,  to  complete  the  intended 
disposition  by  conveying,  in  conformity  to  it,  that  portion 
of  his  own  property  which  it  purports  to  affect. ^  It  is  very 
evident  that  this  doctrine  is  based  upon  the  principle  that 
the  party  who,  under  such  circumstances,  asserts  his  equi- 
table claim  to  one  of  his  rights  must  also  do  equity  by  re- 
linquishing the  other  to  the  persons  who  in  that  case  are 
entitled  to  it,  and  to  that  end  he  is  compelled  to  make  an 
election  between  the  two. 

§  396.  Of  Marshaling. — The  second  doctrine  which  I 
shall  notice  is  that  known  as  the  marshaling  of  securities. 
*'If  a  person  who  has  two  real  estates  mortgages  both  to 
one  person,  and  afterwards  only  one  estate  to  a  second  mort- 
gagee, the  court,  in  order  to  relieve  the  second  mortgagee, 
has  directed  the  first  to  take  his  satisfaction  out  of  that 
estate  only  which  is  not  in  mortgage  of  the  second  mort- 
gagee, if  that  is  sufficient  to  satisfy  the  first  mortgage,  in 
order  to  make  room  for  the  second  mortage."  ^  The  same 
rule  applies  wherever  one  has  any  lien  or  security  on  two 
funds,  and  another  has  a  subsequent  lien  on  only  one  of 
them.  This  doctrine  is  plainly  referable  to  the  principle. 
The  holder  of  the  security  on  two  funds  is  compelled  to 
shape  his  own  remedy,  so  as  to  preserve,  if  possible,  the 
equity  of  the  one  whose  lien  extends  to  but  one  fund.*  In 
fact,  the  whole  theory  with  respect  to  the  marshaling  of 
assets  seems  to  be  derived,  in  part  at  least,  from  the  same 

§395,  1  SneU's  Equity,  178,  179;  Gretton  v.  Haward,  1  Swanst.  433, 
and  note ;  Noys  v.  Mordaunt,  2  Vern.  581 ;  Streatfield  v.  Streatfield,  Cas.  t. 
Talbot,  176,  1  Lead.  Cas.  Eq.  503,  510,  541. 

§  396,  1  Per  Lord  Hardwicke,  in  Lanoy  v.  Duke  of  Athol,  2  Atk.  446; 
Hughes  V.  Williams,  3  Maen.  &  G.  690;  Tidd  v.  Lister,  10  Hare,  157,  3 
De  Gex,  M.  &  G.  857;  Heyman  v.  Dubois,  L.  R.  13  Eq.  158;  Evertson  v. 
Booth,  19  Johns.  486;  Doit  v.  Shaw,  4  Johns.  Ch.  17;  Kendall  v.  New 
England  Co.,  13  Conn.  384;  House  v.  Thompson,  3  Head,  512. 

§  396,  (a)  The  text  is  quoted  in  National  Bank  of  Auburn,  68  N.  Y. 
Boone  v.  Clark,  129  111.  466,  5  Sup.  68,  57  App.  Div.  468,  affirmed, 
L.  E.  A.  276,  21  N.  E.  850;  Breed  v.       171  K   Y.   648,   63  N.  E.  1315. 


737  MUST   COME  INTO   EQUITY    WITH  Ci.EAN   HANDS.  §  397 

source.  A  few  other  doctrines  might,  I  think,  be  speci- 
fied as  thus  related  by  a  common  descent ;  but  enough  has 
already  been  said  to  show  the  great  importance  of  the  prin- 
ciple, lie  who  seeks  equity  must  do  equity,  both  as  a  prac- 
tical rule  governing  the  administration  of  remedies,  and  as 
the  germ  of  equitable  doctrines. 


SECTION  IV. 

HE  WHO   COMES  INTO   EQUITY  MUST   COME  WITH   CLEAN 

HANDS. 

ANALYSIS. 

§  397.  General  meaning  of  this  principle. 

§  398.  Is  based  upon  conscience  and  good  faith. 

§  399.  Limitations  upon  it. 

§§  400-403.  Illustrations  of  its  application. 

§  400.  In  specific  performance. 

§  401.  In  cases  of  fraud. 

§  402.  In  cases  of  illegalitj. 

§  403.  Ldmitation  in  cases  of  fraud  and  illegalitj;  parties  not  in  pari 

delicto. 

§  404.  Conclusion. 

§  397.  Its  General  Meaning.^ — This  maxim  is  sometimes 
expressed  in  the  form,  He  that  hath  committed  iniquity 
shall  not  have  equity.  Like  the  one  described  in  the  preced- 
ing section,  it  is  not,  in  its  ordinary  operation  and  effect, 
the  foundation  and  source  of  any  equitable  estate  or  interest, 
nor  of  any  distinctive  doctrine  of  the  equity  jurisprudence ; 
it  is  rather  a  universal  rule  guiding  and  regulating  the 
action  of  equity  courts  in  their  interposition  on  behalf  of 
suitors  for  any  and  every  purpose,  and  in  their  adminis- 
tration of  any  and  every  species  of  relief.  Eesembling  the 
former  maxim  in  this  respect,  it  differs  from  that  principle 

§  397,    (a)    Sections    397-404    are  Keener  v.  Moslander,  171  Ala.  533, 

cited  in  Snow  v.  Blount,   182  Mass.  54  South.  8S1;  Ilo  Oil  Co.  v.  Indiana 

489,  65  N.  E.  845,  and  in  Drennen  v.  N.    G.    &    O.    Co.,    174    Ind.    63o,    30 

Heard,   211   Fed.   335,   128    C.    C.   A.  L.  R.  A.   (N.  S.)   1057,  92  N.  E.  1. 
14.     Sections    397-399    are    cited    in 
1—47 


§  397  EQUITY   JURISPRUDENCE.  738 

in  some  most  important  and  essential  features.  In  apply- 
ing the  maxim,  He  who  seeks  equity  must  do  equity,  as  a 
general  rule  regulating  the  action  of  courts,  it  is  necessarily 
assumed  that  different  equitable  rights  have  arisen  from  the 
same  subject-matter  or  transaction,  some  in  favor  of  the 
plaintiff  and  some  of  the  defendant;  and  the  maxim  re- 
quires that  the  court  should,  as  the  price  or  condition  of  its 
enforcing  the  plaintiff's  equity  and  conferring  a  remedy 
upon  him,  compel  him  to  recognize,  admit,  and  provide  for 
the  corresponding  equity  of  the  defendant,  and  award  to 
him  also  the  proper  relief.  The  maxim  does  not  assume 
that  the  plaintiff  has  done  anything  unconscientious  or  in- 
equitable ;  much  less  does  it  refuse  to  him  all  relief ;  on  the 
contrary,  it  grants  to  him  the  remedy  to  which  he  is  en- 
titled, but  upon  condition  that  the  defendant's  equitable 
rights  are  protected  by  means  of  the  remedy  to  which  he 
is  entitled.  On  the  other  hand,  the  maxim  now  under  con- 
sideration. He  who  comes  into  equity  must  come  with  clean 
hands,  is  much  more  efficient  and  restrictive  in  its  opera- 
tion. It  assumes  that  the  suitor  asking  the  aid  of  a  court 
of  equity  has  himself  been  guilty  of  conduct  in  violation  of 
the  fundamental  conceptions  of  equity  jurisprudence,  and 
therefore  refuses  him  all  recognition  and  relief  with  refer- 
ence to  the  subject-matter  or  transaction  in  question.  It 
says  that  whenever  a  party,  who,  as  actor,  seeks  to  set  the 
judicial  machinery  in  motion  and  obtain  some  remedy,  has 
violated  conscience,  or  good  faith,  or  other  equitable  prin- 
ciple, in  his  prior  conduct,  then  the  doors  of  the  court  will 
be  shut  against  him  in  limine;  the  court  will  refuse  to  in- 
terfere on  his  behalf,  to  acknowledge  his  right,  or  to  award 
him  any  remedy.^ 

§397,  (b)  Quoted  in  Lewis  v.  Hoi-  App.  59,  116  Pac.  296;  in  Miller  v. 

drege,  56   Neb.   379,   76   N.  W.   890;  Kraus  (Cal.  App.),  155  Pac.  834;  in 

Pineville    Land    &    Lumber    Co.    v.  Wellsville  Oil  Uo.  v.  Miller,  44  Okl. 

Hollingsworth,   21  Ky.  L.   Eep.  899,  493,    145    Pac.    344;    in    Conners    v. 

53  S.  W.  279;  in  Ashe-Carson  Co.  v.  Conners   Bros.   Co.,   110   Me.   428,   86 

Bonifay,  147  Ala.  376,  41  South.  816;  Atl.    843;    the    greater   part    of    the 

in   Allstead   v.   Laumeister,   16    Cal.  paragraph    is    quoted    in    Harton    r. 


739  MUST  COME  INTO  EQUITY   WITH  CLEAN   HANDS.         §  398 

§  398.  Is  Based  upon  Conscience  and  Good  Faith. — The 
principle  involved  in  this  maxim  is  merely  the  expression 
of  one  of  the  elementary  and  fundamental  conceptions  of 
equity  jurisprudence.  We  have  seen  that  in  the  origin  of 
the  jurisdiction  the  theory  was  adopted  that  a  court  of 
equity  interposes  only  to  enforce  the  requirements  of  con- 
science and  good  faith  with  respect  to  matters  lying  out- 
side of,  or  sometimes  perhaps  opposed  to,  the  law.  The 
action  of  the  court  was,  in  pursuance  of  this  theory,  in  a 
certain  sense  discretionary;  and  the  terms  ''discretionary" 
and  ''discretion"  are  still  occasionally  used  by  modern 
equity  judges  while  speaking  of  their  jurisdiction  and  reme- 
dial functions.  Whatever  may  be  the  strictly  accurate 
theory  concerning  the  nature  of  equitable  interference,  the 
principle  was  established  from  the  earliest  days,  that  while 
the  court  of  chancery  could  interpose  and  compel  a  defend- 
ant to  comply  with  the  dictates  of  conscience  and  good  faith 
with  regard  to  matters  outside  of  the  strict  rules  of  the 
law,  or  even  in  contradiction  to  those  rules,  while  it  could 
act  upon  the  conscience  of  a  defendant  and  force  him  to 
do  right  and  justice,  it  would  never  thus  interfere  on  be- 
half of  a  plaintiff  whose  own  conduct  in  connection  with 
the  same  matter  or  transaction  had  been  unconscientious 
or  unjust,  or  marked  by  a  want  of  good  faith,  or  had  vio- 
lated any  of  the  principles  of  equity  and  righteous  dealing 
which  it  is  the  purpose  of  the  jurisdiction  to  sustain.  While 
a  court  of  equity  endeavors  to  promote  and  enforce  justice, 
good  faith,  uprightness,  fairness,  and  conscientiousness  on 
the  part  of  the  parties  who  occupy  a  defensive  position 
in  judicial  controversies,  it  no  less  stringently  demands  the 

Little,   188   Ala.   640,  65   South.  951.  C,   C.  A.   499,  dissenting   opinion   of 

Cited  itt  Michigan  Pipe  Co.  v.  Fre-  Sanborn,  J.;  Union  Central  Life  Ins. 

mont  Ditch,  etc.,   Co.,  Ill  Fed.  284,  Co.  v.  Drake,  214  Fed.  536,  131  C,  C. 

49  C.  C.  A.  324;  City  of  Chicago  v.  A.    82;    International    Land    Co.    v. 

Union   Stock   Yards    &   Transit    Co.,  Marshall,   22   Okl.   693,   19   L.   R.   A. 

164    111.    224,    35    L.    B.   A.    281,    45  (N.  S.)  1056,  98  Pac.  951;  Miller  v. 

N.  E.  430;  Scott  v.  Austin,  36  Minn.  Jackson  Township,  178  lud.  503,  9!) 

460,    32    N.    W.     89,    864;     also    in  N.  E.  102. 
Stewart  v.  Wright,  147  Fed.  321,  77 


§398 


EQUITY    JURISPRUDENCE. 


740 


same  from  the  litigant  parties  who  come  before  it  as  plain- 
ti.iS  or  actors  in  such  controversies.*  This  fundamental 
principle  is  expressed  in  the  maxim,  He  who  comes  into  a 
court  of  equity  must  come  with  clean  hands;  and  although 
not  the  source  of  any  distinctive  doctrines,  it  furnishes  a 
most  important  and  even  universal  rule  affecting  the  entire 
administration  of  equity  jurisprudence  as  a  system  of  reme- 
dies and  remedial  rights. ^  ^ 

§  398,  1  Overton  v.  Banister,  3  Hare,  503 ;  Lewis's  Appeal,  67  Pa.  St. 
166;  Johns  v.  Norris,  22  N.  J.  Eq.  102;  Walker  v.  HUl,  22  N.  J.  Eq.  513; 
Wilson  V.  Bird,  28  N.  J.  Eq.  352;  Blealdey's  Appeal,  66  Pa.  St.  187; 
Creath  v.  Sims,  5  How.  192;  Weakley  v.  Watkins,  7  Humph.  356,  357; 
Atwood  V.  risk,  101  Mass.  363,  100  Am.  Dec.  124;  Gannett  v.  Albee,  103 
Mass.  372;  Marcy  v.  Dnnlap,  5  Lans.  365;  Paine  v.  Lake  Erie,  etc.,  R.  R., 
31  Ind.  283. 


§398,  (a)  The  text  is  quoted  in 
Weegham  v.  Killefer,  215  Fed.  168; 
affirmed,  215  Fed.  289,  L.  B.  A.  1915A, 
820,  131  C.  C.  A.  558;  Harton  v. 
Little,  188  Ala.  640,  65  South.  951; 
in  Wellsville  Oil  Co.  v.  Miller,  44 
Okl.  493,  145  Pac.  344;  in  Sanders 
V.  Cauley,  52  Tex.  Civ.  App.  261, 
113  S.  W.  560.  It  has  been  held 
that  the  maxim  assumes  some  de- 
gree of  moral  guilt  on  the  part  of 
the  complainant;  that  the  fraud  of 
an  agent  imputed  by  law  to  his 
principal  does  not  render  the  lat- 
ter's  hands  "unclean,"  within  the 
meaning  of  the  maxim:  Vulcan  De- 
tinning  Co.  V.  American  Can  Co.,  72 
N.  J.  Eq.  387,  12  L.  R.  A.  (N.  S.) 
102,  67  Atl.  339,  per  Garrison,  J., 
reversing  70  N.  J.  Eq.  588,  62  Atl. 
881.  Bed  quwre.  Fraud,  in  equity, 
often  consists  in  the  unconscien- 
tious use  of  a  legal  advantage  orig- 
inally gained  with  innocent  intent: 
See  post,  chapters  on  Actual  and 
Constructive  Fraud,  passim. 

§  398,  (b)  Cited  in  Michigan  Pipe 


Co.  V.  Fremont  Ditch,  etc.,  Co.,  Ill 
Fed.  284,  49  C.  C.  A.  324;  American 
Ass'n  v.  Innis,  109  Ky.  595,  60  S.  W 
388;  also  in  Union  Central  Life  Ins 
Co.  v.  Drake,  214  Fed.  536,  131  C.  C 
A.  82;  Stewart  v.  Wright,  147  Fed 
321,  77  C.  C.  A.  499,  dissenting  opin 
ion  of  Sanborn,  Cir.  J.;  Baird  v 
Howison,  154  Ala.  359,  45  South.  668 
Colby  V.  Title  Ins.  &  Trust  Co.,  160 
Cal.  632,  Ann.  Cas.  1913A,  515,  35 
L.  R.  A.  (N.  S.)  813,  117  Pac.  913; 
Prudential  Life  Ins.  Co.  v.  La  Chance, 
113  Me.  550,  95  Atl.  223;  Caldwell 
V.  Virginia  Fire  &  Marine  Ins.  Co., 
124  Tenn.  593,  139  S.  W.  698;  Miller 
V.  Jackson  Township,  178  Ind.  503, 
99  N.  E.  102;  and  quoted  in  Wells- 
ville Oil  Co.  V.  Miller,  44  Okl.  493, 
145  Pac.  344.  It  is  held,  in  accord- 
ance with  the  maxim,  that  a  plain- 
tiff who  maintains  a  nuisance  has 
no  standing  in  equity  to  enjoin  its 
unauthorized  abatement:  Pittsburgh, 
C,  C.  &  St.  L.  E'y  Co.  v.  Town  of 
Crothersville,  159  Ind.  330,  64  N.  E. 
914. 


741  MUST  COME  INTO  EQUITY  WITH  CLEAN   HANDS.         §  399 

§  399.  Its  Limitations. — Broad  as  the  principle  is  in  its 
operation,  it  must  still  be  taken  with  reasonable  limitations ; 
it  does  not  apply  to  every  unconscientious  act  or  inequitable 
conduct  on  the  part  of  a  plaintiff.  The  maxim,  considered 
as  a  general  rule  controlling  the  administration  of  equi- 
table relief  in  particular  controversies,  is  confined  to  mis- 
conduct in  regard  to,  or  at  all  events  connected  with,  the 
matter  in  litigation,  so  that  it  has  in  some  measure  affected 
the  equitable  relations  subsisting  between  the  two  parties, 
and  arising  out  of  the  transaction;  it  does  not  extend  to 
any  misconduct,  however  gross,  which  is  unconnected  with 
the  matter  in  litigation,  and  with  which  the  opposite  party 
has  no  concern.  When  a  court  of  equity  is  appealed  to 
for  relief  it  will  not  go  outside  of  the  subject-matter  of  the 
controversy,  and  make  its  interference  to  depend  upon  the 
character  and  conduct  of  the  moving  party  in  no  way  affect- 
ing the  equitable  right  which  he  asserts  against  the  defend- 
ant, or  the  relief  which  he  demands. ^  «■ 

§  399,  1  Lewis's  Appeal,  67  Pa.  St.  166;  Meyer  v.  Yesser,  32  Ind.  294. 
In  Lewis's  Appeal,  67  Pa.  St.  166,  the  court  say:  "It  is  not  every  un- 
founded claim  which  a  man  may  make,  or  unfounded  defense  which  he 
may  set  up,  which  will  bar  him  from  proceeding  in  a  court  of  equity.  The 
rule  that  he  who  comes  into  equity  must  come  with  clean  hands  must  be 
understood  to  refer  to  wiUful  misconduct  in  regard  to  the  matter  in  liti- 
gation :  Snell's  Equity,  25.  All  the  illustrations  given  in  Francis's  Maxims 
of  Equity,  5,  under  the  maxim,  as  he  states  it,  He  that  hath  committed 
iniquity  shall  not  have  equity,  show  this." 

§399,    (a)    The  text  is   quoted  in  App.  261,  113  S.  W.  560;  cited  in  Be- 

American    Ass'n    v.    Innis,    109    Ky.  thea    v.    Bethea,    116    Ala.    265,    22 

595,   60   S.   W.   388;   Rice   v.   Eocke-  South.  561;  Foster  v.  Winchester,  92 

feller,    134    N.    Y.    174,    30    Am.    St.  Ala.   497,    9    South.    83;    Moseler   v. 

Rep.  658,  17  L.  R.  A.  237,  31  N.  E.  Jacobs,  66  111.  App.  571;  John  Ams- 

907;  quoted,  also,  in  Ashe-Carson  Co.  field  Co.  v.  Edw.  B.  Grossman  &  Co., 

V.  Bonifay,   147  Ala.  376,  41  South.  98  111.  App.  180;  Woodward  v.  Wood- 

816;  Lyman  v.  Lyman,  90  Conn.  399,  ward,  41  N.  J.  Eq.  224,  4  Atl.  424; 

L.  R.  A.  1916E,  643,  97  Atl.  312;  Carr  Langdon   v.   Templeton,   66   Vt.   173, 

V.  Craig,  138  Iowa,  526,   116  N.  W.  28  Atl.  866;  Liverpool  &  L.  &  G.  Ins. 

720;  Funck  v.  Farmers'  Elevator  Co.,  Co.  v.  Clunie,  88  Fed.  160;  Viertel  v. 

142  Iowa,  621,  24  L.  R.  A.   (N.  S.)  Viertel    (Mo.   App.),  75   S.   W.   187; 

108,   121  N.  W.  53,  dissenting  opin-  cited,  also,  in  Camors-McConnell  Co. 

ion;  Sanders  v.  Cauley,  52  Tex.  Civ.  v.  McConnell,  140  Fed.  412;  affirmed, 


§400 


EQUITY    JUEISPBUDENCE, 


742 


§  400.  Illustrations — Specific  Performance. — I  shall  now 
give  some  examples  to  illustrate  the  circumstances  under 
which  this  principle  operates  in  the  administration  of  equi- 
table relief,  and  the  manner  in  which  it  is  applied.     The 


140  Fed.  987,  72  C.  C.  A.  681;  Sperry 
&  Hutchinson  Co.  v.  Louis  Weber 
Co.,  161  Fed.  219;  Bentley  v.  Tib- 
balB,  223  Fed.  247,  138  C.  C.  A.  489; 
Bradley  Co.  v.  Bradley,  165  Cal.  237, 
131  Pac.  750;  American-Hawaiian 
Engineering  &  Construction  Co.  y. 
Butler,  165  Cal.  497,  133  Pac.  280; 
Miller  v.  Kraus  (Cal.  App.),  155 
Pac.  834;  Shotwell  v.  Stickle,  83 
N.  J.  Eq.  188,  90  Atl.  246;  Cheuvront 
V.  Horner,  62.  W.  Va.  476,  59  S.  E. 
964.  See,  also,  Coeur  d'Alene  Cons. 
&  M.  Co.  V.  Miners'  Union,  51  Fed. 
260,  19  L.  R.  A.  382;  Shaver  v.  Hel- 
ler &  Merz  Co.,  108  Fed.  831,  48 
C.  C.  A.  48,  affirming  102  Fed.  882; 
General  Electric  Co.  v.  Wise,  119 
Fed.  922;  Trice  v.  Comstock,  121 
Fed.  620,  61  L.  R.  A.  176,  and  cases 
cited;  Knapp  v.  S.  Jarvis  Adams 
Co.,  135  Fed.  1008,  70  C.  C.  A.  536; 
Camors-McConnell  Co.  v.  McConnell, 
140  Fed.  412;  affirmed,  140  Fed.  987, 
72  C.  C.  A.  681  (defense  that  in- 
junction sought  to  enforce  contract 
is  in  aid  of  a  combination  in  re- 
straint of  trade) ;  Cunningham  v. 
Pettigrew,  169  Fed.  335,  94  C.  C.  A. 
457;  Primeau  v.  Granfield,  180  Fed. 
S47  (rule  laid  down  that  maxim 
applies  only  when  prosecution  of 
suitor's  rights  itself  involves  the 
protection  of  wrong-doing) ;  Chute 
V.  Wisconsin  Chemical  Co.,  185  Fed. 
115  (reprehensible  conduct  of  plain- 
tiff, subsequent  to  bringing  suit,  and 
unconnected  with  cause  of  action); 
Cropper  v.  Davis  (C.  C.  A.),  243 
Fed.  310;  Yale  Gas  Stove  Co.  v.  Wil- 
cox, 64  Conn.  101,  128,  42  Am.  St. 
Rep.  159,  173,  20  Atl.  303;  Delaware 


Surety  Co.  v.  Layton  (Del.  Ch.),  50 
Atl.  378;  Brown  v.  Jacobs  Pharmacy 
Co.,  115  Ga.  429,  90  Am.  St.  Rep. 
126,  41  S.  E.  553;  City  of  Chicago  v. 
Union  Stock  Yards  &  Transit  Co., 
164  111.  224,  35  L.  R.  A.  281,  45 
N.  E.  430;  Pitzele  v.  Cohn,  217  III. 
30,  75  N.  E.  392;  Ely  y.  King- 
Richardson  Co.,  265  111.  148,  L.  R.  A. 
1915B,  1052,  106  N.  E.  619  (plaintiff, 
an  employee  of  defendant,  having 
been  discharged  for  bad  faith  in 
organizing  a  rival  company,  sought 
an  accounting  to  determine  his  past 
compensation;  held,  the  maxim  did 
not  apply,  as  the  relief  was  not 
founded  in  any  way  on  his  wrongful 
conduct) ;  Mason  v.  Carrothers,  105 
Me.  392,  74  Atl.  1030;  Beekman  v. 
Marsters,  195  Mass.  205,  122  Am.  St. 
Rep.  232,  11  Ann.  Cas.  332,  11 
L.  R.  A.  (N.  S.)  201,  80  N.  E 
817;  Lurie  v.  Pinanski,  215  Mass 
229,  102  N.  E.  629;  Cuba  Colony  Co, 
T.  Kirby,  149  Mich.  453,  112  N.  W. 
1133;  Williams  v.  Beatty,  139  Mo. 
App.  167,  122  S.  W.  323  (a  prior 
trespass  by  plaintiff  is  no  defense  to 
injunction  against  defendant's  sim- 
ilar trespass) ;  Hodge  v.  United 
States  Steel  Co.,  64  N.  J.  Eq.  90,  53 
Atl.  553;  Kinner  v.  Lake  Shore  & 
M.  S.  R'y  Co.,  69  Ohio,  339,  69  N.  E. 
614;  Dempster  v.  Baxmyer,  231  Pa. 
28,  79  Atl.  805  (fact  that  plaintiff 
agreed  to  improper  use  of  a  portion 
of  a  fund  will  not  bar  his  right  to 
an  account  for  balance) ;  Upchurch 
V.  Anderson  (Tenn.  Ch.  App.),  52 
S.  W.  917;  Post  V.  Campbell,  110 
Wis.  378,  85  N.  W.  1032.  This 
maxim  "denies  all  relief  to  a  suitor, 


743 


MUST    COME   INTO   EQUITY    WITH    CLEAN    HANDS.       §  400 


first  instance  which  I  shall  mention  is  found  in  the  familiar 
doctrine  which  controls  the  equitable  remedy  of  the  specific 
performance  of  contracts.  A  contract  may  be  perfectly 
valid  and  binding  at  law ;  it  may  be  of  a  class  which  brings 


however  well  founded  his  claim  to 
equitable  relief  may  otherwise  be, 
if,  in  granting  the  relief  which  he 
seeks,  the  court  would  be  required, 
by  implication  even,  to  affirm  the 
validity  of  an  unlawful  agreement, 
or  give  its  approval  to  inequitable 
conduct  on  his  part.  But  a  court  of 
equity  is  not  an  avenger  of  wrongs 
committed  at  large  by  those  who  re- 
sort to  it  for  relief,  however  careful 
it  may  be  to  withhold  its  approval 
from  those  which  are  involved  in  the 
subject-matter  of  the  suit,  and  which 
prejudicially  affect  the  rights  of  one 
against  whom  relief  is  sought";  Kin- 
ner  v.  Lake  Shore  &  M.  S.  B'y  Co., 
69  Ohio  St.  339,  69  N.  E.  614.  Thus, 
it  has  been  held  or  stated  that  the 
fact  that  plaintiff  was  a  member  of 
an  illegal  association  or  combination 
was  no  defense  to  a  suit  to  enjoin 
ticket  "scalping"  (Kinner  v.  Lake 
Shore  &  M.  S.  R'y  Co.,  69  Ohio  St. 
339,  69  N.  E.  614;  Pennsylvania  Co. 
V,  Bay,  138  Fed.  203;  and  see  Kirby 
V.  Union  Pac.  R.  Co.,  51  Colo.  509, 
Ann.  Cas.  1913B,  461,  119  Pac. 
1042);  or  infringement  of  a  patent 
(General  Electric  Co.  v.  Wise,  119 
Fed.  922;  United  States  Fire  Escape 
Counterbalance  Co.  v.  Joseph  Hal- 
sted  Co.,  195  Fed.  295);  or  a  suit  to 
enjoin  unfair  and  fraudulent  com- 
petition (Coca-Cola  Co.  v.  Gay-Ola 
Co.,  200  Fed.  720,  lift  C.  C.  A.  164) ; 
or  unlawful  interference  by  a  labor 
union  (Coeur  d'Alene  Cons.  &  M. 
Co.  V.  Miners'  Union,  51  Fed.  260,  19 
Ii.  R.  A.  382.  But  see  Cornellier  v. 
Haverhill  Shoe  Mfrs.  Ass'n,  221 
Mass.  554,  L.  E.  A.  1916C,  218,  109 


N.  E.  643  (plaintiff,  suing  for  in- 
junction against  blacklisting,  denied 
relief  because  he  was  in  a  combina- 
tion to  strike  and  joined  in  unlawful 
methods  of  conducting  the  strike). 
To  a  suit  for  injunction  against  the 
unfair  use  of  the  trade-name  of  one 
of  complainant's  products,  it  is  no 
defense  4;hat  other  products  manu- 
factured by  the  complainant  bore 
misleading  names:  Shaver  v.  Heller 
&  Merz  Co.,  108  Fed.  821,  48  C.  C.  A. 
48,  affirming  102  Fed.  882.  A  rail- 
road may  enjoin  a  city  from  remov- 
ing its  tracks,  although  it  has  used 
its  road  for  certain  unauthorized 
purposes  not  involved  in  the  suit; 
City  of  Chicago  v.  Union  Stock 
Yards  &  Transit  Co.,  164  111.  224,  35 
L.  R.  A.  281,  45  N.  E.  430.  To  an 
injunction  against  a  combination  to 
destroy  complainant's  business  it  is 
no  defense  that  complainant  has  on 
some  occasions  sold  spurious  goods: 
Brown  v.  Jacobs  Pharmacy  Co.,  115 
Ga.  429,  90  Am.  St.  Rep.  126,  57 
L.  R.  A.  547,  41  S.  E.  553.  In  Dela- 
ware Surety  Co.  v.  Lay  ton  (Del. 
Ch,),  50  Atl.  378,  the  plaintiff  sought 
an  injunction  to  prevent  the  secre- 
tary of  state  from  taking  the  plain- 
tiff's certificate  of  incorporation  into 
another  state  for  use  in  a  prosecu- 
tion against  its  president  and  secre- 
tary for  perjury  in  swearing  to  the 
certificate;  it  was  held  that  such 
perjury  was  not  so  connected  with 
the  subject-matter  as  to  justify  the 
application  of  this  maxim  to  the 
plaintiff's  suit.  The  correctness  of 
this  decision  seems  doubtful. 


^  400  EQUITY    JURISPRUDENCE.  744 

it  witliin  the  equitable  jurisdiction,  because  the  legal  rem- 
edy is  inadequate;  but  if  the  plaintiff's  conduct  in  obtain- 
ing it,  or  in  acting  under  it,  has  been  unconscientious,  in- 
equitable, or  characterized  by  bad  faith,  a  court  of  equity 
will  refuse  him  the  remedy  of  a  specific  performance,  and 
will  leave  him  to  his  legal  remedy  by  action  for  damages.* 
It  is  sometimes  said  that  the  remedy  of  specific  perform- 
ance rests  with  the  discretion  of  the  court;  but,  rightly 
viewed,  this  discretion  consists  mainly  in  applying  to  the 
plaintiff  the  principle,  lie  who  comes  into  a  court  of  equity 
must  come  with  clean  hands,  although  the  remedy,  under 
certain  circumstances,  is  regulated  by  the  principle,  He  who 
seeks  equity  must  do  equity.  The  doctrine,  thus  applied, 
means  that  the  party  asking  the  aid  of  the  court  must 
stand  in  conscientious  relations  towards  his  adversary;  that 
the  transaction  from  which  his  claim  arises  must  be  fair 
and  just,  and  that  the  relief  itself  must  not  be  harsh  and 
oppressive  upon  the  defendant.^  By  virtue  of  this  prin- 
ciple, a  specific  performance  will  always  be  refused  when 
the  plaintiff  has  obtained  the  agreement  by  sharp  and  un- 
scrupulous practices,  by  overreaching,  by  concealment  of 
important  facts,  even  though  not  actually  fraudulent,  by 
trickery,  by  taking  undue  advantage  of  his  position,  or  by 
any  other  means  which  are  unconscientious;  and  when  the 
contract  itself  is  unfair,  one-sided,  unconscionable,  or 
affected  by  any  other  such  inequitable  feature;  and  when 
the  specific  enforcement  would  be  oppressive  upon  the  de- 
fendant, or  would  prevent  the  enjoyment  of  his  own  rights, 
or  would  in  any  other  manner  work  injustice. ^  ^     This  appli- 

§400,  IWillard  v.  Tayloe,  8  Wall.  557,  565,  per  Field,  J.;  Marble 
Co.  V.  Ripley,  10  Wall.  339,  356,  357;  Fish  v.  Leser,  69  lU.  394,  395;  Stone 
V.  Pratt,  25  111.  25,  34;  Quinn  v.  Roath,  37  Coun.  16,  24;  Cooper  v.  Pena, 
21  Cal.  403,  411;  Bruck  v.  Tucker,  42  Cal.  346,  353;  Aston  v.  Robinson, 

§400,    (a)    The   text  is   quoted   in  Smith   v.    Price,    125    Ark.    589,    1S9 

Wcegham  v.  Killefer,  215  Fed.  168;  S.  W.  167. 

affirmed,    215    Fed.    289,    L.    R.    A.  §400,    (c)    The   text   is   quoted   in 

1915A,  820,  131  C.  C.  A.  558.  Harton   v.   Little,   188   Ala.    640,    65 

§400,   (b)    The   text  is  quoted  in  South.  951.     Cited  in  Michigan  Pipe 


745  MUST    COME    INTO    EQUITY    WITH    CLEAN    HANDS.       §  401 

cation  of  the  principle,  better  perhaps  than  any  other,  illus- 
trates its  fuPl  meaning  and  effect;  for  it  is  assumed  that 
the  contract  is  not  illegal ;  that  no  defense  could  he  set  up 
against  it  at  law;  and  even  that  it  possesses  no  features  or 
incidents  which  could  authorize  a  court  of  equity  to  set  it 
aside  and  cancel  it.  Specific  performance  is  refused  simply 
because  the  plaintiff  does  not  come  into  court  with  clean 
hands.d 

§  401.  Fraud. — Another  familiar  illustration  of  the  prin- 
ciple may  be  found  in  all  cases  where  the  plaintiff's  claim  is 
affected  by  his  own  fraud.  Whatever  be  the  nature  of  the 
plaintiff's  claim  and  of  the  relief  which  he  seeks,  if  his  claim 
grows  out  of  or  depends  upon,  or  is  inseparably  connected 
with,  his  own  iDrior  fraud,  a  court  of  equity  will,  in  general, 
deny  him  any  relief,  and  will  leave  him  to  whatever  reme- 
dies and  defenses  at  law  he  may  have.^  *    The  maxim  is 

49  Miss.  348,  351;  Weise's  Appeal,  72  Pa.  St.  351,  354;  Snell  v.  Mitchell, 
65  Me.  48,  50;  Blackwilder  v.  Loveless,  21  Ala,  371,  374;  Seymour  v.  De 
Laneey,  6  Johns.  Ch.  222,  224;  Eastman  v.  Plumer,  46  N.  H.  464;  Crane 
V.  De  Camp,  21  N.  J.  Eq.  414;  Plummer  v.  Kepler,  26  N.  J.  Eq.  481; 
Sherman  v.  Wright,  49  N.  Y.  227 ;  Smoot  v.  Rea,  19  Md.  398 ;  Phillips  v. 
Stauch,  20  Mich.  369;  Auter  v.  Miller,  18  Iowa,  405;  Burke  v.  Seely,  46 
Mo.  334;  Mississippi,  etc.,  R.  R.  v.  Cromwell,  91  U.  S.  643;  Lamare  v. 
Dixon,  L.  R.  6  H.  L.  414,  423,  per  Lord  Chelmsford. 

§  401,  1  Overton  v.  Banister,  3  Hare,  503,  506.  An  infant,  fraudulently 
representing  himself  to  be  of  age,  obtained  from  trustees  delivery  of  a 

Co.  V.  Fremont  Ditch,  etc.,  Co.,  Ill  1104.  See,  also,  Trice  v.  Comstock, 
Fed.  284,  49  C.  C.  A.  324;  Stewart  v.  115  Fed.  765;  Eichardson  v.  Walton, 
"Wright,  147  Fed.  321,  77  C.  C.  A.  49  Fed.  88S'  (fraud  by  a  partner  pre- 
499,  dissenting  opinion  of  Sanborn,  eludes  bill  by  him  to  set  aside  con- 
Cir.  J.;  Union  Central  Life  Ins.  Co.  V.  tract  dissolving  partnership);  Han- 
Drake,  214  Fed.  536,  131  C.  C.  A.  82.  ley  v.  Sweeny,  109  Fed.  712,  48  C.  C. 
See,  also,  §  1404,  and  note  to  §  1405.  A.  612   (plaintiff  by  fraud  procured 

§  400,    (d)    The   text  is   quoted  in  the    insertion    of   his    name    as    pur- 

Harton    v.    Little,    188   Ala.   640,    65  chaser  in  order  confirming  adminis- 

South.  951.  trator's   sale,   and   accordingly   cqui- 

§  401,  (a)  The  text  is  quoted  in  table  relief  to  set  aside  deed  to  de- 
Sanders  V.  Cauley,  52  Tex.  Civ.  App.  fendant,  the  true  purchaser,  was 
2G1,  113  S.  W.  560;  Kallison  v.  denied);  Primeau  v.  Granfield,  193 
Poland   (Tex.  Civ.  App.),  167  S.  W.  Fed.  911.  114  C.  C.  A.  549  (plaintiff's 


■101 


EQUITY    JUMSPKUDENCE. 


746 


more  frequently  invoked  in  cases  upon  fraudulent  con- 
tracts.^ If  a  contract  has  been  entered  into  through  fraud, 
or  to  accomplish  any  fraudulent  purpose,  a  court  of  equity 
will  not,  at  the  suit  of  one  of  the  fraudulent  parties, — a  par- 

certain  amount  of  stock,  to  which  he  would  be  entitled  upon  his  coming 
of  age,  and  afterwards,  when  he  did  come  of  age,  he  demanded  and  re- 
ceived the  rest  of  the  stock.  On  account  of  this  fraud,  it  was  held  that 
neither  he  nor  his  assignees  could  compel  repayment  by  the  trustees  of  the 
amount  which  they  had  thus  paid  over  during  the  minority,  although  such 
payment  was  in  fact  a  breach  of  trust,  and  in  the  absence  of  the  fraud 
the   trustees  would  have  been  liable.     Upon  the   subject   of   an   infant's 


cause  of  action  for  an  accounting  in- 
extricably bound  up  in  the  proof 
that  the  business  was  that  of 
defrauding  investors  in  mining 
schemes);  Miller  v.  Kraus  (Cal. 
App.),  155  Pac.  834  (plaintiff's  de- 
ceit in  inducing  defendant  to  be- 
come his  partner,  defense  to  suit  for 
accounting);  Union  Nat.  Bank  v. 
Hines,  177  III.  417,  53  N.  E.  83; 
Morley  Bros.  v.  Stringer  (Mich.),  95 
N.  W.  978  (fraudulent  grantee  who 
pays  a  mortgage  is  not  entitled  to 
reimbursement  from  plaintiff  in  a 
creditor's  bill) ;  Morrison  v.  Juden, 
145  Mo.  282,  46  S.  W.  994;  Hart  v, 
Deitrich  (Neb.),  96  N.  W.  144  (part- 
ner who  absconds  with  firm  funds 
cannot  subsequently  obtain  an  ac- 
counting in  equity) ;  Roche  v.  Hoyt, 
71  N.  J.  Eq.  323,  64  Atl.  174;  Far- 
row v.  Holland  Trust  Co.,  74  Hun, 
585,  26  N.  Y.  Supp.  502;  Southern 
Mut.  Aid  Ass'n  v.  Blount,  112  Va. 
214,  70  S.  E.  487;  Robinson  v. 
Brooks,  31  Wash.  60,  71  Pac.  721 
(one  who  files  a  lien  knowing  it  to 
contain  nonlienable  items,  cannot 
maintain  bill  to  foreclose  it) ; 
Raasch  v.  Raasch,  100  Wis.  400,  76 
N.  W.  591.  A  creditor  who  obtains 
an  assignment  through  fraud  is  not 
entitled  to  the  aid  of  a  court  of 
equity    to    enforce    his    claim    under 


the  assignment:  Commercial  Nat. 
Bank  v.  Burch,  141  111.  519,  33  Am. 
St.  Rep.  331,  31  N.  E.  420.  Know- 
ingly and  consciously  making  an  un- 
true and  excessive  claim  will  defeat 
the  right  to  a  lien  under  a  statute: 
Camden  Iron  Works  v.  City  of  Cam- 
den, 64  N,  J.  Eq.  723,  52  Atl.  477. 
One  engaged  in  a  fraudulent  enter- 
prise cannot  complain  that  his  part- 
ner in  fraud  did  not  keep  faith: 
Bagwell  V.  Johnson,  116  Ga.  464,  42 
S.  E.  733. 

In  Edward  Thompson  Co.  v. 
American  Law  Book  Co.  (C.  C.  A.), 
122  Fed.  923,  there  are  dicta  to  the 
effect  that  the  publisher  of  a  law  en- 
cyclopaedia which  in  some  instances 
was  guilty  of  "piracy"  in  copying 
the  language  of  copyrighted  works 
without  the  consent  of  the  owners  of 
the  copyrights  has  no  standing  in  a 
court  of  equity  to  complain  of  in- 
fringement of  its  copyright  by  a 
rival  encyelopajdia,  consisting  in 
copying  lists  of  cases  and  author- 
ities from  complainant's  work.  But 
qucere,  whether  complainant's  mis- 
conduct was  not  unconnected  with 
the  matter  in  litigation,  within  the 
principle  of  §  399,  ante. 

401,  (b)  The  text  is  quoted  in 
Haymond  v.  Hyer  (W.  Va.),  92 
S.  E.  854. 


747 


MUST    COME    INTO    EQUITY    WITH    CLEAN    HANDS. 


401 


ticeps  doli, — while  the  agreement  is  still  executory,  either 
compel  its  execution  or  decree  its  cancellation,  nor  after 
it  has  been  executed,  set  it  aside,  and  thus  restore  the  plain- 
tiff to  the  property  or  other  interests  which  he  had  fraudu- 
lently transferred.2  c     Equity  will    leave    such    parties  in 

fraud  in  general,  and  its  effect  as  viewed  by  equity,  see  Evroy  v.  Nicholas, 
2  Eq.  Cas.  Abr.  488;  Cory  v.  Gertcken,  2  Madd.  40;  Nelson  v.  Stocker, 

4  De  Gex  &  J.  458,  464,  per  Knight  Bruce,  L.  J.;  Wright  v.  Snowe,  2 
De  Gex  &  S.  321.  As  another  example,  a  party  who  fraudulently  or 
wrongfully  alters  a  written  instrument  cannot  maintain  a  suit  to  obtain 
the  remedy  of  a  reformation:  Marcy  v.  Dunlap,  5  Lans.  365;  and  see 
Bleakley's  Appeal,  66  Pa.  St.  187. 

§  401,  2  Reynell  v.  Sprye,  1  De  Gex,  M.  &  G.  660,  688,  689  (decision 
dismissing  the  cross-bill  of  the  defendant,  Sprye) ;  Wheeler  v.  Sage,  1 
Wall.  518;  Paine  v.  Lake  Erie,  etc.,  R.  R.,  31  Ind.  283;  Creath  v.  Sims, 

5  How.  192;  White  v.  Crew,  16  Ga.  416,  420.  One  of  the  most  common 
occasions  for  the  enforcement  of  this  rule  arises  in  cases  where  a  debtor 
has  conveyed  or  assigned  or  in  any  manner  transferred  his  property  for 
the  purpose  of  defrauding  his  creditors,  and  afterwards  seeks  to  set  aside 
the  transfer  as  against  the  grantee  or  assignee  and  recover  back  the  projj- 
erty.  The  door  of  a  court  of  equity  is  always  shut  against  such  a  claim - 
ant.**    Freeman  v.  Sedwick,  6  Gill,  28,  39,  46  Am.  Dec.  650 ;  Stewart  v. 


§  401,  (c)  The  text  is  quoted  in 
Allstead  v.  La.uineister,  16  Cal.  App. 
59,  116  Pac.  296;  Stewart  v.  Wright, 
147  Fed.  321,  346,  77  C.  C.  A.  499, 
dissenting  opinion  of  Sanborn,  Cir. 
J.;  and  cited  in  McClintock  v.  Lois- 
seau,  31  W.  Va.  865,  2  L.  E.  A.  816, 
8  S.  E.  612.  See,  also,  In  re  Great 
Berlin  S.  Co.,  L.  R.  26  Ch.  Div,  616; 
Kitchen  v.  Eaybum,  86  U.  S.  (19 
Wall.)  254;  Selz  v.  Unna,  73  U.  S. 
(Q,  Wall.)  327;  Eandall  v.  Howard,  67 
U.  S.  (2  Black)  585;  Bartle  v.  Cole- 
man, 29  U.  S.  (4  Pet.)  184;  Scher- 
merhorn  v.  De  Chambrum,  64  Fed. 
195,  12  C.  C.  A.  81,  26  U.  S.  App.  212 
(contract  to  defraud  creditors); 
Clark  V.  Buffalo  Hump  Min.  Co.,  122 
Fed.  243;  Warshaw  v.  A.  Elwood  & 
Son,  83  Conn.  430,  76  Atl.  531  (agree- 
ment between  plaintiff  and  defend- 
ant to  defraud  public  in  sale  of  mis- 


branded  goods;  no  contribution  to 
costs  and  expenses,  accounting,  or 
receivership) ;  Kirkpatrick  v.  Clark, 
132  111.  342,  22  Am.  St.  Kep.  531,  8 
L.  E.  A.  511,  24  N.  E.  71;  Pearce  v. 
Ware,  94  Mich.  321,  53  N.  W.  1106; 
Pendleton  v,  Gondolf,  85  N.  J.  Eq. 
308,  96  Atl.  47;  Helsley  v.  Futz,  76 
Va.  671;  Smith  v.  Chilton,  84  Va. 
840,  6  S.  E.  142;  Bearden  v.  Jones 
(Tenn.  Ch.  App.),  48  S.  W.  88;  Low- 
ther  Oil  Co.  v.  Miller-Sibley  Oil  Co., 
53  W.  Va.  501,  97  Am,  St.  Eep.  1027, 
44  S.  E.  433  (specific  performance). 
§401,  (<i)  Conveyance  in  Fraud  of 
Creditors. — The  text  is  cited  in 
Sniper  v.  Kelleher  (Wash.),  72  Pae. 
67;  cited,  also,  in  Reed  v.  Rob- 
bins,  58  Ind.  App.  659,  108  N".  E. 
780.  See,  also,  Dent  v.  Ferguson, 
132  U.  S.  50,  10  Sup.  Ct.  13;  Baird  v. 
Howison,    154    Ala.    359,    45    South. 


§401 


EQUITY    JURISPRUDENCE. 


748 


exactly  the  position  in  which  they  have  placed  themselves, 
refusing  all  affirmative  aid  to  either  of  the  fraudulent  par- 
ticipants. The  only  equitable  remedies  which  they  can 
obtain  are  purely  defensive.  Upon  the  same  principle, 
wherever  one  party,  in  pursuance  of  a  prior  arrangement, 
has  fraudulently  obtained  property  for  the  benefit  of  an- 
other, equity  will  not  aid  the  fraudulent  beneficiary  by  com- 
pelling a  conveyance  or  transfer  thereof  to  him ;  and  gener- 
ally, where  two  or  more  have  entered  into  a  fraudulent 
scheme  for  the  purpose  of  obtaining  property  in  which  all 

Iglehart,  7  GiU  &  J.  132,  28  Am.  Dec.  202;  Bolt  v.  Rogers,  3  Paige,  156; 
Stark's  Ex'rs  v.  Littlepage,  4  Rand.  372 ;  Janey  v.  Bird's  Adm'rs,  3  Leigh, 
510. 


668;  Brown  t.  Brown,  66  Conn.  493, 
34  Atl.  490  (property  conveyed  by 
third  party  to  defendant  in  trust  for 
plaintiff,  in  order  to  defraud  plain- 
tiff's wife);  Bowers  v.  Cottrell,  15 
Idaho,  22i,  96  Pac.  936;  Decker  v. 
Stansberry,  249  111.  487,  Ann.  Cas. 
1912A,  227,  94  N.  E.  940;  Brady  v. 
Huber,  197  IH.  291,  90  Am.  St.  Eep. 
161,  64  N.  E.  264;  Durand  v.  Hig- 
gins  (Kan.),  72  Pac.  567  (grantor  of 
conveyance  in  fraud  of  creditors 
cannot  have  his  title  quieted  as 
against  such  conveyance) ;  Hill  v. 
Scott,  12  Ky.  Law  Eep.  877,  15  S.  W. 
667;  Carson  v.  Beliles,  121  Ky.  294, 
1  L.  E.  A.  (N.  S.)  1007,  89  S.  W.  208 
(conveyance  in  anticipation  of  bas- 
tardy proceedings) ;  Gillum  v.  Kirk- 
sey,  29  Ky.  Law  Kep.  422,  93  S.  W. 
591  (secret  trust  to  defraud  creditors 
not  enforced);  Southwood  v.  South- 
wood,  30  Ky.  Law  Rep.  307,  98  S.  W. 
304,  and  cases  cited;  Watts  v.  Van- 
sant  (Md.),  58  Atl.  433;  Moore  v. 
Jordan,  65  Miss.  229,  7  Am.  St.  Eep. 
641,  3  South.  737;  Miller  v.  Miller, 
206  Mo.  341,  103  S.  W.  962;  Creamer 
V.  Bivert,  214  Mo.  473,  113  S.  W. 
1118;   White   v,   Cuthbert,  41   N.   Y. 


Supp.  818,  10.  App.  Div.  220  (cancel- 
lation of  note  given  to  assist  fraud- 
ulent attachment  refused) ;  Pride  v. 
Andrews,  51  Ohio  St.  405,  38  N.  E. 
84,  and  cases  cited;  Hukill  v.  Yoder, 
189  Pa.  St.  233,  43  Wkly.  Notes  Cas. 
347,  42  Atl.  122;  Jones  v.  Jones,  20 
S.  D.  632,  108  N.  W.  23;  Nunnally  v. 
Stokes,  116  Va.  472,  82  S.  E.  79; 
Boothe  V.  Bassett,  82  Wash.  95,  143 
Pac.  449;  Hubbard  v.  Eobrecht,  75 
W.  Va.  566,  84  S.  E.  379;  Craig  v. 
Craig  (W.  Va.),  46  S.  E.  371.  And 
see  all  the  cases  collected  in  note,  3 
Am.  St,  Eep.  727.  The  same  rule 
applies  to  a.  conveyance  in  fraud  of 
the  dower  of  grantor's  wife:  Creigh- 
ton  V.  Eoe,  218  111.  619,  109  Am.  St. 
Eep.  310,  75  N.  E.  1073;  Derry  v. 
Fieldor,  216  Mo.  176,  115  S.  W.  412 
(no  resulting  trust  when  conveyance 
was  taken  in  name  of  third  party  in 
order  to  cut  off  dower  of  purchaser's 
wife).  In  Bush  v.  Rogan,  65  Ga. 
320,  38  Am.  Eep.  785,  it  is  held  that 
the  grantee  can  maintain  ejectment 
against  the  grantor;  but  see  Kirk- 
patriek  V.  Clark,  132  111.  342,  22  Am. 
St.  Eep.  531,  8  L.  E.  A.  511,  24  N.  E. 
7L 


749  MUST    COME    INTO    EQUITY    WITH    CLEAN    HANDS.       §  4U1 

are  to  share,  and  the  scheme  has  been  carried  out  so  that 
all  the  results  of  the  fraud  are  in  the  hands  of  one  of  the 
parties,  a  court  of  equity  will  not  interfere  on  behalf  of 
the  others  to  aid  them  in  obtaining  their  shares,  but  will 
leave  the  parties  in  the  position  where  they  have  placed 
themselves. 3  e 

§  401,  3  Johns  V.  Norris,  22  N.  J.  Eq.  102;  Walker  v.  Hill,  22  N.  J.  Eq. 
513;  Bleakley's  Appeal,  6G  Pa.  St.  187;  Musselman  v.  Kent,  33  Ind.  452; 
Hunt  V.  Rowland,  28  Iowa,  349;  Hibernian,  etc.,  Soc.  v.  Ordway,  38  Cal. 
679.  In  Johns  v.  Norris,  22  N.  J.  Eq.  102,  where  a  widow,  by  a  prior 
arrangement,  procured  a  third  person  to  buy  in  the  real  estate  of  her 
husband  at  a  foreclosure  sale  at  a  pi'ice  far  below  its  real  value,  by  con- 
trivances agreed  upon  to  deter  other  persons  from  bidding,  and  by  giving 
out  that  the  purchase  was  for  the  benefit  of  the  widow  and  her  family,  it 
was  held  that  she  was  a  participant  in  the  fraud  against  the  heirs  and 
creditors,  and  did  not  come  into  court  with  clean  hands,  in  a  suit  to  compel 
the  confederate  to  convey  the  land  to  her,  and  relief  was  therefore  refused. 
In  Walker  v.  Hill,  22  N.  J.  Eq.  513,  the  same  was  held  with  respect  to 
an  execution  debtor  who  had  by  a  secret  arrangement  procured  a  person 
to  buy  in  the  property  at  the  execution  sale  for  the  debtor's  benefit,  in 
such  a  manner  as  to  be  fraudulent  against  other  creditors  and  purchasers. 
The  court  refused  to  grant  relief  by  compelling  a  conveyance  by  the  pur- 
chaser to  the  execution  debtor.  In  Bleakley's  Appeal,  66  Pa.  St.  187,  the 
principle  was  applied  under  different  circumstances.  One  I.  was  the  ven- 
dee under  a  land  contract,  and  had  paid  part  of  the  purchase  price.  A 
judgment  was  then  recovered  against  him  by  L. ;  whereupon  I.  assigned 
the  contract  to  B.,  antedating  the  assignment,  so  that  it  apj^eared  to  pre- 
cede the  recovery  of  the  judgment.  This  assignment  was  made  both  by  I. 
and  B.  for  the  purpose  of  defrauding  L.  B.  afterwards  paid  to  the  vendor 
in  the  land  contract  the  residue  of  the  purchase-money.  L.  in  the  mean 
time  issued  an  execution,  and  I.'s  interest  under  the  land  contract  was  sold 
at  execution  sale,  and  bought  in  by  the  judginent  creditor,  L.  L.  brings 
this  suit  against  the  vendor  to  compel  a  specific  performance  of  the  eon- 
tra-^t  by  a  conveyance  to  himself.  Held,  that  L.  was  entitled  to  such 
specific  performance  and  conveyance  by  the  vendor,  without  repaying  to 
B.  the  amount  of  the  purchase  price  which  he  had  paid  to  the  vendor. 

§401,    (e)    The   text   is   quoted  in  98  N.  E.   93   (A  and  B  obtain  deed 

Milhaus   v.   Sally,   43    S.   C.    318,   49  of  their  mother's  property,  by  undue 

Am.  St.  Rep.  834,  21  S.  E.  268,  88-5.  influence;  the  deed  was  taken  to  A; 

And  see  Lawton  v.  Estes,  167  Mass.  equity  will  set  the  deed  aside  in  be- 

181,  57  Am.  St.  Rep.  450,  45  N.  E.  half  of  C,  another  child,  but  not  in 

90;  Lyons  v.  Elston,  211  Masa.  478,  behalf  of  B). 


§  402  EQUITY    JURISPRUDENCE.  750 

§  402.  Illegality. — Another  very  common  occasion  for  in- 
v-oking  the  principle  is  illegality.^  Wherever  a  contract 
or  other  transaction  is  illegal,  and  the  parties  thereto  are, 
in  contemplation  of  law,  in  pari  delicto,  it  is  a  well-settled 
rule,  subject  only  to  a  few  special  exceptions  depending 
upon  other  considerations  of  policy,  that  a  court  of  equity 
will  not  aid  a  particeps  criminis,  either  by  enforcing  the 
contract  or  obligation  while  it  is  yet  executory,  nor  by  re- 
lieving him  against  it,  by  setting  it  aside,  or  by  enabling 
him  to  recover  the  title  to  property  which  he  has  parted 
with  by  its  means.  The  principle  is  thus  applied  in  the 
same  manner  when  the  illegality  is  merely  a  malum  pro- 
hibitum, being  in  contravention  to  some  positive  statute, 
and  when  it  is  a  malum  in  se,  as  being  contrary  to  public 
policy  or  to  good  morals.^  Among  the  latter  class  are 
agreements  and  transfers  the  consideration  of  which  was 

Speaking  of  B.'s  claim  to  be  repaid,  the  court  said:  "He  (B.),  standing 
thus  before  a  chancellor,  cannot  ask  him  to  make  repayment  to  him  a  con- 
dition to  a  decree  removing  the  fraudulent  obstruction  he  threw  in  the 
way.  The  payment  is  one  of  the  very  steps  he  took  to  consummate  the 
fraud  upon  L.  If  he  have  a  legal  right  of  recovery,  he  must  resort  to 
his  action  at  law;  if  he  can  have  none,  it  is  a  test  of  his  want  of  equity. 
And  in  addition  to  all  this,  it  is  a  rule  that  a  chancellor  will  not  assist  a 
party  to  obtain  any  benefit  arising  from  fraud.  He  must  come  into  a  court 
of  equity  with  clean  hands.  It  would  be  a  singular  exercise  of  equity 
which  would  assist  a  party,  who  had  paid  money  to  enable  him  to  per- 
petrate a  fraud,  to  recover  his  money,  just  when  the  chancellor  was  en- 
gaged in  thrusting  out  of  the  way  of  his  doing  equity  to  the  injured  party 
the  very  instrument  of  the  fraud.  He  who  does  iniquity  shall  not  have 
equity :  Hershey  v.  Weiting,  14  Wright,  244."  See,  also,  Odessa  Tramways 
Oo.  V.  Mendel,  L.  R.  8  Ch.  Div.  235. 

§402,  (a)  This  section  of  the  text  Edwards  v.  Boyle,  37  Okl.  639,   133 

is  cited  in  Basket  v.  Moss,  115  N.  C.  Pac.    233.     The   subjects    treated    in 

•148,  44  Am.  St.  Kep.  463,  48  L.  R.  A.  this  and  the  following  paragraph  are 

842,  20  S.  E.  733;  Booker  v.  Wingo,  discussed  more  at  length  in  §§  937- 

29   S.   C.   116,  7   S.   E.   49;    Colby   v.  942. 

Title  Ins.  &  Trust  Co.,  160  Cal.  632,  §  402,  (b)  This  portion  of  the  text 

Ann.   Cafi.   1913A,   515,   35  L.  R.   A.  is  quoted  in  Greer  v.  Payne,  4  Kan. 

(N.  S.)  813,  117  Pac.  913;  Woodall  V.  App.    153,   46   Pac.    190;   Vincent   v. 

Peden,  274  111.  301,   113  N.  E.   608;  Moriarty,   52  N.   Y.  Supp.  519;   also 


751  MUST    COME    INTO    EQUITY    WITH    CLEAN    HANDS.       §  402 

violation  of  chastity,  compounding  of  a  felony,  gambling, 
false  swearing,  the  commission  of  any  crime,  or  breach 
of  good  morals.  1  It  should  be  observed,  however,  in  order 
to  avoid  any  misapprehension  and  seeming  inconsistency 

§  402,  1  Cases  of  illegal  contracts  upon  a  consideration  in  violation  of 

chastity :«  Benyon  v.  Nettlefield,  3  Macn.  &  G.  94,  102,  103 ;  Bodly  v. , 

2  Cas.  Ch.  15,  per  Lord  Nottingham;  Whaley  v.  Norton,  1  Vern.  482; 
Bainham  v.  Manning,  2  Vern.  242;  Spicer  v.  Hay  ward,  Free.  Ch.  114; 
Dillon  V.  Jones,  cited  in  5  Ves.  290 ;  Franco  v.  Bolton,  3  Ves.  368 ;  Batty  v. 
Chester,  5  Beav.  103;  Smyth  v.  Griffij^  13  Sim.  245;  Priest  v.  Farrott,  2 
Ves.  Sr.  160;  Cray  v.  Rooke,  Cas.  t.  Talb.  153;  Hill  v.  Spencer,  Amb.  641, 
836;  Gray  v.  Mathias,  5  Ves.  286;  Clark  v.  Feriam,  2  Atk.  333.  In  the 
following  cases  relief  was  given,  in  some  to  the  man  or  his  representatives^ 
in  others  to  the  woman,  upon  contracts  of  the  same  general  nature ;  but  on 
examination  none  of  them  will  be  found  in  opposition  to  the  principle : 
the  exact  question  either  was  not  raised  by  the  pleadings,  or  the  considera- 
tion was  not,  in  the  view  of  the  court,  illegal:  Sismey  v.  Eley,  17  Sim.  1; 
Knye  v.  Moore,  Sim.  &  St.  61;  Matthew  v.  Hanbury,  2  Vern.  187;  Robin- 
son v.  Cox,  9  Mod.  263;  Clark  v.  Feriam,  2  Atk.  333;  Marchioness  of 
Annandale  v.  Harris,  2  P.  Wms.  432 ;  Hall  v.  Falmer,  3  Hare,  532.  Cases 
where  the  agreement  was  upon  a  gambling  consideration,  or  a  lottery, 
etc.  :«i  Weakley  v.  Watkins,  7  Humph.  356,  357;  Faine  v.  France,  26  Md. 
46;  but  where  money  had  been  loaned  expressly  to  enable  the  borrower 
to  pay  a  gambling  debt,  it  does  not  come  within  the  rule,  and  can  be  re- 
covered back:  Ex  parte  Fyke,  8  Ch.  Div.  754,  756,  757.  Cases  where  the 
agreement  or  transfer  was  made  upon  the  consideration  of  compounding  a 
felony,  or  of  promising  not  to  prosecute  for  some  crime  :*^  Harrington  v. 

in  Harris  v.  Hardridge,  7  Ind.  Ter.  §  402,  (d)  Board  of  Trade  v.  O'Dell 

532,  104  S.  W-  826  (no  specific  per-  Commission  Co.,  115  Fed.  574  (bucket 

formance  of  a  contract  to  transfer  shop);  Baxter  v.  Deneen   (Md.),  57 

land,  where  at  the  time  statute  pro-  Atl.    601;    Stewart    v.    Parnell     147 

hibited  transfer,  though  the  prohibi-  Pa.  St.  523,  23  Atl.  838,    29    Wkly. 

tion  was  afterward  removed).  Notes  Cas.  537. 

§  402,  (c)  A  contract  in  considera-  §  402,   («)   Compounding  a  felony: 

tion   of  or  relating  to  illicit  sexual  Eock  v.  Mathews,  35  W.  Va.  531    14 

relations  will  not  be  enforced:   Cha-  L.  R.  A.  508,  14  S.  E.  137-  Treadwell 

teau  V.  Singla,   114  Cal.  91,  55  Am.  v.  Torbert,  119  Ala.  279,  72  Am.  St. 

St.  Rep.  63,  33  L.  R.  A.  750,  45  Pac.  Rep.  918,  24  South.  54.     Agreements 

1015;    Watkins   v.   Nugen    (Ga.),   45  not  to  prosecute:  Moore  v.  Adams,  8 

S.   E.   262;    Brindley   v.   Lawton,   53  Ohio    (8    Ham.),    372,    32    Am.    Dec. 

N.  .1.  Eq.  (8  Dick)    259,  31  Atl.  394  723;   George  v.  Curtis,  45  W.  Va.  1, 

(bill  to  compel  restoration  of  stock  30  S,  E.  69, 
given  in  consideration  of  illicit  rela- 
tions cannot  be  sustained). 


§  402  EQUITY   JURISPEUDENCE.  752 

iu  the  decisions,  that  there  are  agreements  which  appear, 
at  first  blush,  to  be  founded  upon  an  immoral  considera- 

Bigelow,  11  Paige,  349;  Atwood  v.  Fisk,  101  Mass.  363,  100  Am.  Dec. 
124 ;  Swartzer  v.  Gillett,  1  Chand.  207,  209,  210 ;  but  see  Davies  v.  London, 
etc.,  Co.,  L.  R.  8  Ch.  Div.  469.  This  and  other  cases  of  the  same  class 
in  which  relief  is  given  are  explained  in  the  next  succeeding  paragraph 
and  the  note  thereunder.  Cases  in  which  the  agreement  or  transaction 
is  illegal,  because  contrary  to  the  provisions  of  some  positive  statute  or  to 
public  policy.'  In  re  Arthur  Average  Ass'n,  L.  R.  10  Ch.  542;  In  re  South 
Wales,  etc.,  Co.,  L.  R.  2  Ch.  Div.  763 ;  Sykes  v.  Beadon,  L.  R.  11  Ch.  Div. 
170,  183,  197;  Thomson  v.  Thomsonr7  Ves.  470;  Regby  v.  Connol,  L.  R.  14 
Ch.  Div.  482,  491;  Carey  v.  Smith,  11  Ga.  539,  547.  In  the  first  two  cases 
above  named,  it  was  held  that  an  association,  illegal  because  not  organized 
in  confonnity  with  certain  mandatory  statute,  cannot  be  "wound  up"  by 
a  court  of  equity.  In  Sykes  v.  Beadon,  L.  R.  11  Ch.  Div.  170,  a  company 
had  been  formed  for  the  -purpose  of  making  investments  and  dealing  in 
securities,  all  the  members  having  signed  articles  of  association.  This 
association  was  held  illegal,  because  it  violated  certain  statutes,  and,  among 
others,  the  acts  against  lottex'ies.  A  large  amount  of  capital  had  been 
sunk,  and  the  managers  or  trustees  had  committed  some  gross  breaches  of 
their  trust.  This  suit  was  brought  by  a  share-holder  against  some  of  the 
trustees,  to  compel  them  to  carry  out  the  trusts,  and  to  make  them  liable 
for  the  sums  lost  through  their  breaches  of  trust.  The  questions  were  very 
fully  discussed  by  Jessel,  M.  R.,  who  held  that  the  suit  could  not  be  main- 
tained. He  said  (p.  193)  :  "Now,  the  authorities  on  the  subject  seem  to 
be  quite  plain  when  you  come  to  examine  them.  They  are  really  to  this 
effect,  that  you  cannot  ask  the  aid  of  a  court  of  justice  to  cany  out  an 
illegal  contract;  but  in  cases  where  the  contract  is  actually  at  an  end,  or 
is  put  an  end  to,  the  court  will  interfere  to  prevent  those  who  have,  under 
the  illegal  contract,  obtained  money  belonging  to  other  persons  on  the 
representation  that  the  contract  was  legal,  from  keeping  that  money." 
Again,  he  said  at  page  197 :  "I  think  the  principle  is  clear  that  you  cannot 
directly  enforce  an  illegal  contract,  and  you  cannot  ask  the  court  to  assist 
you  in  carrying  it  out.  You  cannot  enforce  it  indirectly ;  that  is,  by  claim- 
ing damages  or  compensation  for  the  breach  of  it,  or  contribution  from  the 
persons  making  the  profits  realized  from  it.  It  does  not  follow  that  you 
cannot,  in  some  cases,  recover  money  paid  over  to  third  persons  in  pursu- 
ance of  the  contract;  and  it  does  not  follow  that  you  cannot,  in  other 

§402,    (f)    Teoli  v.   Nardolillo,   23  Rep.  398,  87  N.  E.  597    (injunction 

B.  I.  87,  49  Atl.  489  (accounting  be-  refused  against  foreclosure  of  mort- 

tween  partners  engaged  in  unlawful  gage    given   in   payment   for   illegal 

■business);  Downey  v.  Charles  P.  S.  purchase  of  liquor). 
Gove  Co.,  201  Mass.  251,  lai  Am.  St. 


753  MUST    COME    INTO   EQUITY    WITH    CLEAN    HANDS.       §  402 

tioii,  or  which  would  at  one  time  perhaps  have  been  re- 
garded as  contrary  to  public  policy,  which  courts  of  equity 

eases,  obtain,  even  from  the  parties  to  the  contract,  moneys  which  they 
have  become  possessed  of  l)y  representations  that  the  contract  was  legal, 
and  which  belonged  to  the  persons  who  seek  to  recover  them ;  but  I  am 
bound  to  say  I  think  there  is  no  pretense  for  saying  that  an  illegal  con- 
tract will  in  any  way  be  enforced  or  aided  by  a  court  of  law  or  equity." 
In  Wegby  v.  Connol,  L.  R.  14  Ch.  Div.  482,  491,  a  member  of  a  "trades 
union"  had  been  expelled  for  violating  certain  rules  of  the  society  which 
were  stringently  in  restraint  of  trade,  and  he  brought  this  suit  to  be  re- 
stored to  his  rights  of  membership  and  the  property  rights  belonging 
thereto.  Trades  unions  had  been  legalized  by  an  act  of  Parliament  for 
certain  specified  purposes,  but  not  for  all  purposes.  The  court  held  that, 
independent  of  the  statute,  the  society  and  the  articles  of  agreement  be- 
tween its  members  were  clearly  illegal,  because  contrary  to  public  policy; 
that  the  suit  did  not  come  within  the  operation  of  the  statute;  and  there- 
fore a  court  of  equity  could  give  the  plaintiff  no  relief.  In  Carey  v. 
Smith,  11  Ga.  539,  547,  both  parties  had  been  engaged  in  transactions 
violating  the  statutes  concerning  banking.  See,  also,  Johnson  v.  Shrews- 
bury, etc.,  R'y,  3  De  Gex,  M.  &  G.  914,  per  Knight  Bruce,  L.  J.;  Aubin  v. 
Holt,  2  Kay  &  J.  6G,  70,  per  Page  Wood,  V.  C.s 

§  402,  (s)  Miscellaneous  Cases. —  Trade-mark  Cases.  —  No  relief 
Agreements  in  unreasonable  re-  against  infringement  will  be  granted 
straint  of  trade  or  tending  to  monop-  when  plaintiff's  trade-mark  or  trade- 
oly  are  illegal  and  will  not  be  en-  name  is  a  fraud  on  the  public:  Man- 
forced  in  equity:  American  Biscuit  hattan  Med.  Co.  v.  Wood,  108  U.  S. 
Co.  V.  Klotz,  44  Fed.  721;  Pacific  218,  2  Sup.  Ct.  436;  Worden  v.  Cali- 
Postal  Tel.  Cable  Co.  v.  Western  fornia  Fig  Syrup  Co.,  187  U.  S.  516, 
Union  Tel.  Co.,  50  Fed.  493  (in June-  23  Sup.  Ct.  161;  Preservaline  Mfg. 
tion) ;  Chicago  Gas  Light  Co.  v.  Gas  Co.  v.  Heller  Chem.  Co.,  118  Fed. 
Light  Co.,  121  111.  530,  S  Am.  St.  Rep.  103;  Siegert  v.  Abbott,  61  Md.  276, 
124,  13  N.  E.  169  (specific  perform-  48  Am.  Eep.  101;  Kenny  v.  Gillet,  70 
ance);  South  Chicago  City  Ey.  Co.  Md.  574,  17  Atl.  499;  Parlett  v.  Gug- 
v.  Calumet  Electric  St.  R'y  Co.,  171  genheimer,  67  Md.  542,  1  Am.  St. 
111.  391,  49  N.  E.  576  (specific  per-  Rep.  416,  10  Atl.  81;  Messer  v.  The 
f  ormance) ;  Perry  v.  United  States  Fadettes,  168  Mass.  140,  60  Am.  St. 
School  Furniture  Co.,  232  111.  101,  Eep.  371,  37  L.  R.  A.  721,  46  N.  E. 
83  N.  E.  444  (judgment  creditor,  407;  McVey  v.  Brendel,  144  Pa.  St. 
whose  judgment  was  obtained  on  a  235,  27  Am.  St.  Rep.  625,  13  L.  R.  A. 
contract  in  violation  of  the  anti-trust  377,  22  Atl.  912,  29  Wkly.  Notes 
law,  cannot  maintain  a  creditor's  bill  Cas.  1;  Lemke  v.  Dietz  (Wis.),  98 
against  a  fraudulent  grantee  of  the  N.  W.  936;  Bear  Lithia  Springs  Co. 
judgment  debtor).  v.  Great  Bear  Spring  Co.,  71  N.  J, 
1—48 


§402 


EQUITY   JURISPEUDENOB. 


754 


do  not  consider  to  be  illegal,  and  which  they  will  therefore 
enforce,  if  properly  coming  within  their  jurisdiction.  Of 
this  kind  are  some  contracts  made  upon  the  consideration 


Eq.  595,  71  Atl.  383  (misrepresenta- 
tions aa  to  curative  qualities  of  plain- 
tiff's mineral  water) ;  Memphis 
Keeley  Institute  v.  Leslie  E.  Kecley 
Co.,  155  Fed.  964,  16  L.  R.  A.  (N.  S.) 
921,  84  C.  C.  A.  112  (an  interesting 
case;  misrepresentations  that  plain- 
tiff's remedy  contained  "chloride  of 
gold"). 

Contract  or  conveyance  against 
policy  of  United  States  land  laws 
is  illegal,  and  will  not  be  en- 
forced: Dial  V.  Hair,  18  Ala.  798,  54 
Am.  Doc.  179  (specific  performance 
refused) ;  Beck  v.  Flournoy  Live- 
stock &  E.  E.  Co.,  65  Fed.  30,  12 
C.  C.  A.  497,  27  U.  S.  App.  618  (in- 
junction against  interference  by  gov- 
ernment refused) ;  Kennedy  v.  Lona- 
baugh,  19  Wyo.  352,  Ann.  Cas.  1913E, 
133,  117  Pac.  1079  (accounting  re- 
fused on  agreement  for  illegal  ac- 
quisition of  coal  lands).  A  contract 
to  stifle  bidding  at  a  judicial  sale 
will  not  be  specifically  enforced: 
Camp  V.  Bruce,  96  Va.  521,  70  Am, 
St.  Eep.  873,  43  L.  B.  A.  146,  31 
S.  E.  901.  A  champertous  contract 
will  not  be  specifically  enforced:  Cas- 
serleigh  v.  Wood  (C.  C.  A.),  119  Fed. 
309.  An  injunction  will  not  issue 
at  the  suit  of  a  person  conducting  an 
illegal  business  to  restrain  a  police 
captain  from  stationing  officers  con- 
tinuously on  the  premises:  Weiss  v. 
Herlihy,  49  N.  Y.  Supp.  81,  23  App. 
Div.  608.  See,  also,  Modern  Horse- 
shoe Club  V.  Stewart,  242  Mo.  421, 
146  S.  W.  1157.  An  injunction  will 
not  issue  to  restrain  a  postmaster 
from  interfering  with  plaintiff's 
mail,    when    plaintiff    has    been    en- 


gaged in  a  fraudulent  scheme:  Pub- 
lic Clearing  House  v.  Coyne,  121  Fed. 
927.  Further  illustrations:  Harton 
T.  McKee,  73  Fed.  556;  Danciger  t. 
Stone,  187  Fed.  853  (a  shipper  can- 
not enjoin  state  officers  seizing 
liquors  while  in  interstate  commerce 
if  he  is  violating  the  liquor  laws  of 
the  state  in  other  ways);  Simonds  v. 
East  Windsor  Elect.  R'y  Co.,  73 
Conn.  513,  48  Atl.  210;  Meyers  v. 
Merillion,  118  Cal.  352,  50  Pac.  662; 
Lines  v.  Willey,  253  HI.  440,  97  N.  E. 
843  (a  conveyance  made  for  an  un- 
lawful purpose,  viz.,  to  enable  the 
grantees,  women,  to  vote  at  a  drain- 
age district  election  at  which  they 
could  not  legally  vote  unless  they 
actually  owned  land,  cannot  be  set 
aside  or  reformed  by  the  grantor  or 
his  heirs) :  Ilo  Oil  Co.  v.  Indiana  N. 
G.  &  0.  Co.,  174  Ind.  635,  30  L.  R. 
A.  (N.  S.),  1057,  92  N.  E.  1  (injunc- 
tion sought  against  waste  of  oil  and 
gas  by  one  who  is  committing  same 
acts);  Conners  v.  Conners  Bros.  Co., 
110  Me.  428,  86  Atl.  843  (stockhold- 
er's bill  to  compel  directors  to  ac- 
count for  use  of  corporate  funds  for 
corrupt  purposes;  relief  denied,  since 
plaintiff  knew  of  the  use  and  did  not 
object);  Garrett  v.  Kansas  City  Coal 
Min.  Co.,  113  Mo.  330,  35  Am.  St. 
Eep.  713,  20  S.  W.  965;  Barnum  v. 
Barnum,  177  Mo.  App.  68,  164  S.  W. 
129;  Brooks  v.  Cooper,  50  N.  J.  Eq. 
761,  35  Am.  St.  Rep.  793,  21  L.  R.  A. 
617,  26  Atl.  978;  Harvey  v.  Linvillo 
Imp.  Co.,  118  N.  C.  693,  54  Am.  St. 
Eep.  749,  32  L.  E.  A.  265,  24  S.  E. 
489;  Markley  v.  Mineral  City,  58 
Ohio  St.  430,  65  Am.  St.  Eep.  776,  51 
N.  E.  28. 


755  MUST    COME    INTO    EQUITY    WITH    CLEAN    HANDS.       §  403 

of  an  improper  cohabitation  being  terminated,  and  those 
providing  for  children  born  from  such  cohabitation.^ 

§  403.  Limitations — Parties  not  in  Pari  Delicto.^ — Upon 
the  general  doctrine  stated  in  the  preceding  paragraphs  con- 
cerning the  effect  of  fraud  and  illegality  upon  the  remedial 
rights  of  parties  seeking  the  aid  of  equity,  there  are  cer- 
tain limitations,  founded  mainly  upon  motives  of  policy, 

§  402,  2  With  respect  to  contracts  upon  the  consideration  mentioned  in 
the  text,  see  the  following  cases,  cited  in  the  last  note :  Sismey  v.  Eley,  17 
Sim.  1;  Knye  v.  Moore,  1  Sim.  &  St.  61;  Matthew  v.  Hanbury,  2  Vern. 
187;  Robinson  v.  Cox,  9  Mod.  263;  Clark  v.  Periam,  2  Atk.  333;  Mar- 
chioness of  Annandale  v.  Harris,  2  P.  Wms.  432;  Hall  v.  Palmer,  2  Hare, 
532.  It  is  now  settled  that  an  agreement  of  separation  between  a  hus- 
band and  wife  is  not  illegal,  not  against  public  policy,  and  if  drawn  in  a 
proper  form,  so  that  there  are  two  parties  capable  of  contracting,  will  be 
specifically  enforced  at  the  suit  of  either  spouse :  Besant  v.  Wood,  L.  R. 
12  Ch.  Div.  605,  620-624;  Wilson  v.  Wilson,  1  H.  L.  Cas.  538;  Hunt  v. 
Hunt,  4  De  Gex,  F.  &  J.  221,  233;  Marshall  v.  Marshall,  27  Week.  Rep. 
399;  Flower  v.  Flower,  20  Week.  Rep.  231.  The  earlier  decisions  were 
undoubtedly  the  other  way.  See  Aylett  v.  Ashton,  1  Mylne  &  C.  105; 
Duke  of  Bolton  v.  Williams,  2  Ves.  138.  In  Besant  v.  Wood,  L.  R.  12 
Ch.  Div.  605,  Jessel,  M.  R.,  reviews  the  authorities,  and  discusses  at  length 
the  legal  meaning  and  effect  of  "public  policy."  In  Fisher  v.  Apollinaris 
Co.,  L.  R.  10  Ch.  297,  302,  303,  it  was  held  by  the  court  of  appeal,  as  a 
general  rule,  that  where  an  offense  is  of  such  a  nature  that  the  offender 
may  be  proceeded  against  either  criminally  or  civilly,  or  both,  and  he  is 
prosecuted  criminally,  there  is  nothing  illegal  nor  improper  in  a  com- 
promise of  the  whole  proceedings;  such  agreement  of  compromise  is  valid, 
and  will  be  enforced  by  equity,  if  coming  within  the  equitable  jurisdiction. 
It  should  be  observed,  however,  that  this  rule  is  confined  to  those  wrongs 
which  are  capable  at  the  common  law  of  being  prosecuted  both  civilly  and 
criminally;  it  does  not,  of  course,  extend  to  offenses  for  which  modern 
statutes  have  given  an  action  at  law  for  damages,  such  as  homicide.** 

§  402,  (*»)  It  was  held,  however,  in       holds    otherwise,    is    overruled.     See 
Windhill  Local  Board  v.  Vint,  45  Ch.       further,  last   note,   under    §  936. 
Div.  351,  that  any  agreement  to  com-  §  ^^3,    (a)    This   paragraph   of   the 

,.  text  was  cited,  but  held  inapplicable 
promise    or    postpone    a    prosecution  ■,      n 

to  the  facts  of  the  case,  in  Milhaus 

for  a  vublic  offense — as  an  interfer-  ^    c!„ii„    ^o   o    n    oio     ^n    *        o^ 

*^  V.    Sally,   43   S.   C.   318,   49   Am.    St. 

cnce     with     a     public     highway— is  ^^^    gg^^  gl   S.  E.  268,  885,  and  in 

illegal;    and    Fisher    v.    Apollinaris  Harton   v.   Little,   188    Ala.    640,   65 

Co.,  L.   R.   10   Ch.   297,  so  far   as  it  South.  951. 


§  403  EQUITY    JURISPRUDENCE.  756 

wliich  require  a  brief  mention.  Wherever  a  case  falls  within 
the  limitation,  and  not  within  the  general  rule,  the  court 
may  give  relief  against  the  improper  transaction,  or  may 
even  enforce  the  obligation  arising  from  the  tainted  agree- 
ment, at  the  suit  of  one  of  the  parties  thereto.  The  first 
of  these  limitations  may  be  given  in  the  following  general 
formula,  and  all  the  others  may  be  regarded  as  merely 
particular  deductions  or  corollaries  from  it.  Assuming  that 
a  contract  is  fraudulent,  or  against  public  policy,  or  illegal, 
still,  where  the  parties  to  it  are  not  in  pari  delicto,  and 
where  public  policy  is  considered  as  advanced  by  allowing 
either,  or  at  least  the  most  excusable  of  the  two,  to  sue 
for  relief,  relief  may  be  given  to  him,  either  against  the 
transaction  by  setting  it  aside  and  restoring  him  to  his 
original  position,  or  even,  in  some  cases,  by  enforcing  the 
contract,  if  executory.^  ^     The  second  limitation  I  cannot 

§  403,  1  This  general  limitation  is  thus  stated  by  Knight  Bruce,  L.  J., 
in  the  great  case  of  Reynell  v.  Sprye,  1  De  Gex,  M.  &  G.  660,  679:  "But 
where  the  parties  to  a  contract  against  public  policy,  or  illegal,  are  not 

§  403,    (b)    This  paragraph  of   the  26   N.    E.    343    (marriage    brokerage 

text  was  cited  and  followed  in  Du-  contract);  Basket  v.  Mars,  115  N.  C. 

val  V.  Wellman,   124   N.   Y.   158,   26  448,  44  Am.  St.  Rep.  463,  48  L.  R.  A. 

N.  E.  343   (marriage  brokerage  con-  842,  20  S.  E.  733. 
tract);   Donnelly  v.  Rees   (Cal.),  74  For  cases  where  the  parties  were 

Pac.    433    (conveyance    obtained    by  not   in  pari  delicto,   see   post,    §  942, 

undue   influence);    Daniels   v.   Bene-  and   notes;    Daniels   v.  Benedict,   50 

diet,   50   Fed.    347    (divorce   fraudu-  Fed.   347;   Missouri,  K.   &   T.   Co.  v. 

lently  obtained);  Arnold  v.  Searing,  Krumseig,   77   Fed.   32;   Donnelly   v, 

73  N.  J.  Eq.  262,  67  Atl.  831;  Ben-  Rees  (Cal.),  74  Pac.  433;  Herrick  v. 

det  V.  Ellis,  120  Tenn.  277,  127  Am.  Lynch,   150   111.   283,   37   N.   E.   221; 

St.  Rep.   1000,   18  L.  R.  A.    (N.   S.)  Davidson  v.  Carter,  55  Iowa,  117,  7 

114,  111  S.  W.  795.  N.   W.   466;   Williams   v.   Collins,   67 

For   cases   where   public  policy   is  Iowa,  413,  25   N.  W.  682;   Anderson 

promoted      by      allowing      a      party  v.  Merideth,  82  Ky.  564;   Harper  v. 

equally  guilty  with  the  other  to  sue  Harper,  85  Ky.  160,  7  Am.  St.  Rep. 

for  relief,  see  post,  §941,  and  notes;  583,  and  note,  3  S.  W.  5;  Harris  v. 

Missouri,  K.  &  T.  Co.  v.  Krumseig,  Carmody,  131  Mass.  51,  41  Am.  Rep. 

77   Fed.   32,   40  U.   S.   App.   620,   23  188;    O'Connor    v.    Ward,    60    Miss. 

C.  C.  A.  1   (usurious  contract);  Cox  1025;  Holliway  v.  Holliway,  77  Mo. 

v.   Donnelly,   34   Ark.   762    (contract  392;    Kleeman    v.    Peltzer,    17    Neb. 

in  violation  of  the  homestead  act);  381,   22    N.    W.    793;    Ford    v.    Har- 

Duval   V.   Wellman,    124   N.   Y.   158,  rington,  16  N.  Y.  285;  Eadie  v.  Slim- 


757  MUST    COME   INTO   EQUITY    WITH    CLEAN    HANDS.       §  403 

better  state  than  in  the  carefully  considered  language  of 
the  present  master  of  rolls,  Sir  George  Jessel,  in  a  very 
recent  case:  ''You  cannot  ask  the  aid  of  a  court  of  justice 
to  carry  out  an  illegal  contract;  but  in  cases  where  the  con- 
tract is  actually  at  an  end,  or  is  put  an  end  to,  the  court 
will  interfere  to  prevent  those  who  have,  under  the  illegal 
contract,  obtained  money  belonging  to  other  persons,  on 
the  representation  that  the  contract  was  legal,  from  keep- 

in  pari  delicto  (and  they  are  not  always  so),  and  where  public  policy  is 
considered  as  advanced  by  allowing  either,  or  at  least  the  most  excusable 
of  the  two,  to  sue  for  relief  against  the  transaction,  relief  is  given  to  him, 
as  we  know  from  various  authorities."  I  cannot  at  present  enter  into  any 
discussion  of  the  rule,  nor  describe  the  kinds  of  contracts  in  which  the 
parties  are  not  in  pari  delicto,  so  that  the  court  may  aid  the  one  who  is 
comparatively  innocent.  The  whole  subject  is  discussed  in  a  most  able 
and  exhaustive  manner,  the  authorities  are  reviewed,  and  the  contracts  to 
which  the  rule  applies  are  described  and  classified  by  Selden  and  Comstock, 
JJ.,  in  Tracy  v.  Talmage,  14  N.  Y.  162,  67  Am.  Dec.  132,  and  by  some  of 
the  opinions  in  the  great  case  of  Curtis  v.  Leavitt,  15  N.  Y.  9.  See,  also, 
Osborne  v.  WUliams,  18  Ves.  379;  Prescott  v.  Norris,  32  N.  H.  101;  White 
V.  Franklin  Bank,  22  Pick.  186;  Lowell  v.  Boston,  etc.,  R.  R.,  23  Pick. 
32,  34  Am.  Dec.  33;  Bellamy  v.  Bellamy,  6  Fla.  62,  103.  Among  the 
ordinary  instances  where  equity  will  set  aside  a  fraudulent  or  illegal  trans- 
action at  the  suit  of  the  party  supposed  to  be  comparatively  innocent, 
wholly  on  grounds  of  public  policy,  is  the  familiar  case  of  a  borrower  suing 
to  have  the  usurious  contract  and  securities  surrendered  up  and  canceled, 
and  where,  in  a  composition  purporting  to  be  effected  on  terms  of  equality 
by  an  insolvent  with  all  his  creditors,  secret  bargains  are  made  with  some 
of  them  by  which  they  are  to  obtain  more  favorable  terms  than  the  others, 
or  where,  in  an  assignment  by  an  insolvent,  a  secret  arrangement  is  made 
with  the  assignee  in  order  to  secure  benefits  out  of  the  property  to  the 
debtor  or  his  family,  such  agreements,  being  in  fraud  of  creditors,  will  be 
set  aside  by  a  court  of  eqvxity,  even  at  the  suit  of  tte  insolvent  himself. 
Such  relief,  however,  is  plainly  not  given  out  of  consideration  for  the 
debtor,  but  solely  for  the  purpose  of  protecting  the  creditors:  See  Easta- 

mon,  26  N.  Y.  9,  82  Am.  Dec.  395;  Greene,  14   R.  I.   618,  51  Am.   Rep. 

Boyd  V.  De  la  Montagnie,  73  N.  Y.  419;  Gorringe  v.  Reed,  23  Utah,  120, 

498,  29  Am.  Kep.   197;   Schoener  v.  90  Am.   St.  Rep.   692,  63  Pac.   902; 

Lissauer,   107   N.   Y.    112,    13   N.    E.  Harrington    v.    Grant,    54    Vt.    236; 

741;    Adams    v.    Irving    Nat.    Bank,  Malbye  v.  Malbye,  15  Wash.  648,  47 

116  N.  Y.  606,  15  Am.  St.  Rep.  447,  Pac.     16;     Clemens    v.   Clemens,    28 

6  L.  R.  A.  491,  23  N.  E.  7;  Foley  v.  Wis.  637,  9  Am.  Rep.  520. 


§  403  EQUITY    JURISPRUDENCE.  758 

ing  that  money.  ...  It  does  not  follow  that  you  cannot, 
in  some  cases,  recover  money  paid  over  to  third  persons 
in  pursuance  of  the  contract;  and  it  does  not  follow  that 
you  cannot,  in  other  cases,  obtain,  even  from  the  parties 
to  the  contract,  moneys  which  they  have  become  possessed 
of  by  representations  that  the  contract  was  legal,  and  which 
belong  to  the  persons  who  seek  to  recover  them."  ^  One  of 
the  parties  to  an  illegal  contract  may  therefore,  in  some 
cases,  maintain  a  suit  against  a  third  person  to  recover 
money  which  the  latter  has  received  under  the  contract.^ 
In  order,  however,  that  such  legal  relations  may  arise  in- 

brook  V.  Scott,  3  Ves.  456;  Cullingworth  v.  Loyd,  2  Beav.  385,  390,  note; 
McNeill  V.  Calaill,  2  Bligh,  228;  Bellamy  v.  Bellamy,  6  Fla.  62,  103,  and 
cases  cited.  The  following  are  some  particular  illustrations :  In  Benyon  v. 
Nettlefold,  3  Macn.  &  G.  94,  a  gentleman  had  given  a  deed  containing 
covenants  binding  him  to  pay  an  annuity  to  trustees  for  the  benefit  of  a 
certain  woman  during  her  life.  The  real  consideration  of  this  deed  was 
continued  furtive  cohabitation  with  the  woman  as  his  mistress ;  but  another 
consideration  was  stated  in  the  deed,  so  that  it  was  valid  on  its  face.  An 
action  at  law  was  brought  against  him  to  recover  the  impaid  amount  of 
the  annuity.  It  was  well  settled  that  he  would  have  a  perfect  defense 
at  law  if  the  real  facts  as  to  the  consideration  could  be  brought  out  in 
evidence.  He  then  filed  a  bill  in  equity  for  the  purpose  solely  of  obtain- 
ing a  discovery  from  the  other  parties  as  to  the  real  nature  of  the  con- 
sideration, but  not  asking  any  relief  against  the  instrument.  Upon  demur- 
rer to  the  bill  the  court  held  that  while  a  suit  for  relief  could  not  be 
maintained  under  these  circumstances,  a  suit  for  discovery  alone  in  aid  of 
the  defense  at  law  was  proper,  and  a  discovery  would  be  compelled.  In 
Osbaldiston  v.  Simpson  and  Bowles,  13  Sim.  513,  the  plaintiff  had  given 
to  Simpson,  for  the  benefit  of  Bowles,  his  promissory  notes,  which  said 
defendants  had  obtained  from  the  plaintiff  by  threatening  to  accuse  him  of 
having  cheated  Bowles  at  cards,  and  to  sue  him  for  the  penalties  for  that 
offense  under  a  certain  statute.  It  was  held  that  the  plaintiff  was  entitled 
to  a  decree  for  the  surrender  of  and  cancellation  of  the  notes,  even  on  the 
assumption  that  he  had  actually  been  guilty  of  the  alleged  cheating.  See, 
also,  Woi-thington  v.  Curtis,  L.  R.  1  Ch.  Div.  419;  Davies  v.  London,  etc., 
Co.,  L.  R.  8  Ch.  Div.  469;  Odessa  Tramways  Co.  v.  Mendel,  L.  R.  8  Ch. 
Div.  235;  Ex  parte  Pyke,  L.  R.  8  Ch.  Div.  754. 

§  403,  2  Sykes  v.  Beadon,  L.  R.  11  Ch.  Div.  170,  193,  197. 

§  403,  3  Thus  if  a  trust  should  be  created  whereby  A  was  illegally  to 
pay  money  to  the  trustee,  B,  for  the  benefit  of  C,  the  beneficiary  could 


759  MUST    COME    INTO   EQUITY    WITH    CLEAN    HANDS.       §  403 

cidentally  and  collaterally  from  an  illegal  contract,  the  ille- 
gality itself  must  not  be  of  a  nature  intrinsically  immoral 
or  evil;  it  must  be  an  illegality  resulting  from  motives  of 
expediency  or  policy.     In  all  the  cases  where  a  right  of 

not  compel  A  to  make  the  payment;  but  if  A  should  voluntarily  pay  over 
the  money  into  the  hands  of  B,  the  beneficiary,  C,  could  then  maintain  a 
suit  and  recover  the  money,  and  B  could  not  set  up  the  illegality  of  the 
original  trust  as  a  defense,  and  thus  retain  the  property:  Thomson  v. 
Thomson,  7  Ves.  470;  Tenant  v.  Elliott,  1  Bos.  &  P.  3;  Farmer  v.  Russell, 
1  Bos.  &  P.  296;  Sharp  v.  Taylor,  2  Phill.  Ch.  801;  Joy  v.  Campbell,  1 
Schoales  &  L.  328,  339;  McBlair  v.  Gibbes,  17  How.  237;  Brooks  v.  Mar- 
tir,  2  Wall.  81;  Tracy  v.  Talmage,  14  N.  Y.  162,  67  Am.  Dec.  132.  la 
Tenant  v.  Elliott,  1  Bos.  &  P.  3,  there  was  an  illegal  contract  between  the 
plaintiff  and  a  third  person.  The  defendant  received  money  in  pursuance 
of  the  contract  from  that  third  person  to  the  use  of  the  plaintiff.  It  was 
held  that  the  plaintiff  could  recover  such  money  from  the  defendant,  al- 
though he  could  not  have  enforced  the  contract  against  the  third  person. 
In  Eai-mer  v,  Russell,  1  Bos.  &  P.  296,  there  was  an  illegal  contract  be- 
tween the  plaintiff  and  a  third  person,  by  which  the  plaintiff  a^eed  to 
deliver  certain  counterfeit  coins  to  the  third  person  for  a  stipulated  price. 
The  defendants  were  carriers  employed  by  the  plaintiff  to  deliver  the  arti- 
cles and  receive  the  price,  which  they  did.  The  plaintiff  suing  the  carriers 
to  recover  the  money  in  their  hands,  the  defense  of  illegality  was  set  up, 
but  overruled,  and  the  plaintiff  was  held  entitled  to  maintain  the  suit. 
Sharp  V.  Taylor,  2  Phill.  Ch.  801,  was  decided  in  accordance  with  the  same 
rule,  but  upon  quite  different  circumstances.  It  has  been  regarded  as  a 
leading  case,  and  has  been  followed  by  subsequent  decisions;  but  some  of 
the  reasoning  of  Lord  Cottenham,  in  his  opinion,  is  sharply  criticised 
and  shown  to  be  unsound,  by  Sir  George  Jessel,  in  the  recent  case,  already 
quoted,  of  Sykes  v.  Beadon,  L.  R.  11  Ch.  Div.  170,  195,  196.«  The  follow- 
ing are  very  recent  examples  of  the  application  of  this  rule :  In  Worthing- 

§403,    (c)    In  McDonald  v.  Lund,  thus    left    on    deposit.     It    is    plain 

13   Wash.   412,   43   Pac.   348,   it   was  that    this    decision    is    quite    unsup- 

held,    chiefly    in    reliance    on    these  ported   by   the   English   cases    cited, 

English   cases,   that    when    plaintiff  in    all    of    which    the    fruits    of    the 

had  been  engaged  with  defendant  in  illegal    transaction    were    deposited 

an    illegal    gambling    business,    and  with    a    third    party.     For    cases    il- 

after    the    business    had    terminated  lustrating  the  rule  which  sometimes 

left    in    defendant's    hands    the    un-  permits    a    party    to    an    agreement 

divided  profits   of   the  business,   un-  prohibited  by  statute,  or  ultra  vires. 

der   an   agreement   that   he   was   en-  and  not  involving  a  malum  in  se,  to 

titled  to  a   certain   portion  thereof,  recover    money   or   property   in    the 

the  plaintiff  might  recover  the  sum  hands  of  the  other  party,  see  post. 


§  403  EQUITY   JURISPRUDENCE.  760 

action  arising  collaterally  from  an  illegal  contract  has  been 
thus  recognized  and  enforced,  it  will  be  found  that  the 
agreement  was  illegal  because  opposed  to  some  statute,  or 
to  so-called  public  policy. 

ton  V.  Curtis,  L.  R.  1  Ch,  Div.  419,  423,  424,  a  father  took  out  a  policy 
of  life  insurance  in  the  name  of  and  on  the  life  of  his  son,  in  whose  life 
he  had  no  insurable  interest,  which  policy  was  in  fact  intended  by  the 
father  for  his  own  benefit  alone.  The  policy,  as  between  the  company 
and  the  assured,  was  illegal  and  void,  under  certain  statutes.  The  son  died 
intestate,  and  the  company  voluntarily  paid  the  sum  insured  by  the  policy 
to  his  administrator.  Held,  that  although  neither  the  father  nor  the  ad- 
ministrator of  the  son  could  have  maintained  any  action  on  the  policy 
against  the  company  on  account  of  its  illegality,  yet  the  money  having 
been  voluntarily  paid  by  the  comj^any,  as  between  the  father  and  the 
estate  of  the  son,  the  father  was  entitled  to  such  money,  and  could  recover 
the  same.  In  Davies  v.  London,  etc.,  Ins.  Co.,  L.  R.  8  Ch.  Div.  4G9,  477, 
the  manager  of  the  company  accused  one  of  their  agents,  named  Evans, 
of  embezzlement,  and  threatened  to  prosecute  him.  In  order  to  prevent 
the  threatened  prosecution,  the  plaintiff,  in  pursuance  of  an  agreement  to 
that  effect  with  the  manager,  deposited  a  sum  of  money  with  a  third  per- 
son, and  now  sues  to  recover  it  back.  The  company  defended  on  the 
ground  that  the  agreement  was  illegal,  and  that  the  court  would  not  aid 
a  particeps  criminis.  Held,  that  even  if  the  agreement  was  illegal,  as 
compounding  a  felony,  the  court  would  interfere  in  a  case  where  the  money 
was  actually  in  the  hands  of  trustees,  or  where  pressure  had  been  used  to 
obtain  it.  The  court  said  (p.  477)  :  "It  is  said  that,  assuming  the  contract 
to  be  illegal,  Davies  was  equally  a  party  to  that  illegal  contract,  and  that 
therefore  the  court  will  stay  its  hand,  and  then  the  maxim.  In  pari  delicto 
melior  est  conditio  defendentis,  will  prevail.  But,  in  the  first  place,  there 
is  great  difficulty  in  applying  that  principle  to  a  case  where  money  has 
been  placed  in  medio,  and  where  the  court  must  do  something  with  it,  or 
else  leave  it  to  be  locked  up  forever.  In  the  next  place,  it  appears  to  me 
to  be  clear  that  illegality  resulting  from  pressure,  and  illegality  resulting 
from  an  attempt  to  stifle  a  prosecution,  do  not  fall  within  that  class  of 
illegalities  which  induce  the  court  to  stay  its  hand,  but  are  of  a  class  in 
which  the  court  has  actively  given  its  assistance  in  favor  of  the  oppressed 
party,  by  directing  the  money  to  be  repaid."  He  cites,  as  sustaining  this 
conclusion,  the  case  of  Williams  v.  Bayley,  L.  R.  1  H.  L.  200;  and  tlie 
case  of  Osbaldiston  v.  Simpson,  13  Sim.  513,  the  facts  of  which  are  stated 

§  942,  latter  part  of  author's  note  2;  the  text  (statute  imposed  penalty 
Bond  V.  Montgomery  (Ark.),  20  on  one  party  only,  who  was  the 
S.  W.  525,  citing  this  paragraph  of       party  defendant  in  the  suit). 


761  MUST    GOME    INTO    EQUITY    WITH    CLEAN    HANDS.       §  404 

§  404.  Conclusion. — The  special  rules  eontained  in  the 
foregoing  paragraphs  will  serve  to  illustrate  the  meaning 
and  operation  of  the  principle,  He  who  comes  into  a  court 
of  equity  must  come  with  clean  hands ;  but  they  by  no  means 
exhaust  its  scope  and  effect.  It  is  not  alone  fraud  or  ille- 
gality which  will  prevent  a  suitor  from  entering  a  court  of 
equity;  any  really  unconscientious  conduct,  connected  with 
the  controversy  to  which  he  is  a  party,  will  repel  him  from 
the  forum  whose  very  foundation  is  good  conscience.^ 

ante,  is  also  directly  in  point.  See,  also,  Ex  parte  Pyke,  L.  R.  8  Ch.  Div. 
754,  in  which  it  was  held  that  money  loaned  to  enable  the  borrower  to  pay 
a  bet  illegal  by  statute  could  be  recovered  back.  For  another  and  different 
mode  in  which  the  general  limitation  described  in  the  text  may  operate,  see 
Powell  V.  Knowler,  2  Atk.  224.  A  and  B  had  made  an  agreement  for  the 
division  and  conveyance  to  each  other  of  parts  of  certain  land  which  they 
expected  to  recover.  This  contract  was  champertous  and  illegal,  and  could 
not,  as  a  contract,  be  enforced.  But  one  of  the  parties,  who  had  thus 
agreed  to  convey  a  portion  of  the  land  to  the  other,  by  a  clause  in  his 
will  directed  the  agreement  to  be  performed,  and  created  a  trust  for  that 
purpose.  It  was  held  that  the  trust  thus  created  by  the  will  should  be 
enforced  against  the  trustee,  although  the  original  contract  was  also 
thereby  specifically  performed. 

§404,  (a)  The  text  is  quoted  in  Atl.  881;  in  Bearman  v.  Dux  Oil  & 
Brotzman's  Appeal,  119  Pa.  St.  645,       Gas    Co.    (Old.),    166    Pac.    199;    in 


13  Atl.  483;  in  Weegham  v.  Kille 
fer,  215  Fed.  168;  affirmed,  215  Fed 
289,  L.  R.  A.  1915A,  820,  131  C.  C.  A 
558;  in  Murray  v.  Barnes,  146  Ala 
688,  40  South.  348;  in  Anders  v 
Sandlin,  191  Ala.  158,  67  South.  684 
in  Vulcan  Detinning  Co.  v.  Ameri 
can  Can  Co.,   70  N.  J.  Eq.  588,   62 


Sanders  v.  Cauley,  52  Tex.  Civ.  App. 
261,  113  S.  W.  560;  and  cited  in 
Baird  v.  Howison,  154  Ala.  359,  45 
South.  668;  Barnum  v.  Barnum,  177 
Mo.  App.  68,  164  S.  W.  129;  Pendle- 
ton V.  Gondolf  (N.  J.  Eq.),  96  Atl. 
47. 


§  405  EQUITY   JUBISPEUDENCE.  762 

SECTION  V. 

EQUALITY  IS   EQUITY. 

ANALYSIS. 

§  405.     Its  general  meaning. 
§§  406-411.     Its  effects  upon  certain  equitable  doctrines. 
§§  406,407.     Of  pro  rata  distribution  and  contribution. 

§  408.     Ownership  in  common. 

§  409.     Joint  indebtedne-ss;  liability  of  estate  of  deceased  joint  debtor. 

§410.     Settlement  of  insolvent  estates;  marshaling  of  assets. 

§411.  Abatement  of  legacies;  apportionment  of  liens;  appointment  un- 
der trust  powers;  contribution,  among  co-sureties  and  co-con- 
tractors. 

§  412.     Conclusion, 

§  405.  Its  General  Meaning.a — We  have  seen  in  the  open- 
ing paragraphs  of  the  introductory  chapter  that  the  notion 
of  equality  or  impartiality — cequum — lay  at  the  very  founda- 
tion of  the  cequitas  as  conceived  of  by  the  Roman  jurists; 
the  same  idea  was,  from  the  outset,  incorporated  into  the 
equity  jurisprudence  created  by  the  English  court  of  chan- 
cery, and  has  been  perpetuated  in  all  its  doctrines  into 
which  the  notion  could  possibly  enter,  until  the  present  day. 
While  the  common  law  looked  at  and  protected  the  rights  of 
a  person  as  a  separate  and  distinct  individual,  equity  rather 
regards  and  maintains,  as  far  as  possible,  the  rights  of 
all  who  are  connected  b}^  any  common  bond  of  interest  or 
of  obligation.  The  principle,  Equality  is  equity,  or  Equity 
delighteth  in  equality,  is  of  very  wide  and  general  appli- 
cation. It  is  the  immediate  and  conceded  source  of  several 
important  and  distinctive  doctrines  of  the  equity  jurispru- 
dence. But  this  is  not  all.  It  furnishes  a  practical  rule 
for  the  guidance  of  equity  courts  in  their  administration  of 
reliefs,  whenever  they  obtain  jurisdiction  over  a  great 
variety  of  cases,  unless  some  compulsory  dogma  of  the  law 

§  405,    (a)    Sections     405-412     are  monds,  158  Wis.  122,  147  N.  W.  1024 

cited  in  Campau  r.  Detroit  Driving  (common  liability  of  subscribers  to 

Club    (Mich.),   98   N.   W.   267.     Sec-  a  joint  adventure), 
tion  405  is  cited  in  Sieklesteel  v.  Ed- 


763  EQUALITY   IS   EQUITY.  §  406 

stands  in  the  way,  I  shall  briefly  mention  the  important 
equitable  doctrines  which  are  derived  from  this  principle, 
nnd  indicate  a  few  of  the  cases  in  which  it  operates  as  a 
rule  controlling  the  administration  of  reliefs. 

§  406.  Is  the  Source  of  Certain  Equitable  Doctrines — Pro 
Rata  Distribution  and  Contribution. — Wherever  a  number 
of  persons  had  separate  claims  against  the  same  individual 
or  the  same  fund,  the  law  generally  gave  certain  classes  of 
such  claimants  a  complete  precedence,  even  to  the  exhaus- 
tion of  the  fund  if  necessary,  over  the  others,  arising  solely 
from  the  form  of  their  security;  as,  for  example,  bond  and 
other  specialty  creditors  over  simple  contract  creditors. 
Also,  among  several  persons  having  claims  of  the  same 
grade  against  a  single  individual  or  fund,  the  one  who  by 
his  superior  activity,  either  by  means  of  action  and  judg- 
ment or  not,  obtains  payment  of  his  demand  the  first  in 
order  of  time,  is  entitled  at  law  to  the  precedence  thus 
acquired  over  the  others,  even  though  they  should  thereby 
be  prevented,  in  whole  or  in  part,  from  procuring  satis- 
faction. Conversely,  it  is  a  familiar  doctrine  of  the  law, 
that  when  a  creditor  has  a  single  claim  against  several  per- 
sons, each  of  such  debtors  is  regarded  as  so  completely 
and  individually  liable  that  the  creditor  may  enforce  pay- 
ment of  the  entire  demand  from  any  one  of  the  number. 
The  law  will  not  interfere  with  the  action  of  the  creditor; 
it  will  not  compel  him  in  any  manner  to  obtain  satisfaction 
from  all  of  the  debtors  pari  passu;  and  after  one  of  the 
number  had  thus  been  obliged  to  pay  the  whole  amount,  the 
ancient  common  law,  prior  to  its  adoption  of  doctrines 
borrowed  from  equity,  failed  to  give  him  any  right  of  re- 
course upon  his  co-debtors  by  means  of  which  the  burden 
might  finally  be  distributed  among  them  all  in  just  propor- 
tions. The  rules  of  the  modern  law  giving  such  right  of 
reimbursement  are  a  direct  importation  from  the  equity 
jurisprudence.  Finally,  the  common  law,  prior  to  statu- 
tory changes,  exhibited  a  decided  preference,  in  fact  leaned 
very  strongly,  in  favor  of  joint  ownership  over  ownership 


§  407  EQUITY    JURISPRUDENCE.  764 

in  common,  and  in  favor  of  a  joint  right  among  creditors 
over  a  several  right,  and  a  joint  liability  among  debtors 
over  a  several  or  joint  and  -several  liability,  with  all  the 
legal  consequences  of  "survivorship,"  and  of  an  extinction 
of  the  right  or  lialnlity  on  the  part  of  any  one  of  the  cred- 
itors or  debtors  who  dies.  Under  all  these  conditions  of 
fact,  equity  proceeded  upon  a  very  different  principle,  upon 
the  principle  that  equality  is  equity,  that  the  right  or  Ijurden 
should  be  equalized  among  all  the  persons  entitled  to  par- 
ticipate. It  must  not  be  understood,  however,  that  a  court 
of  equity  would  always  directly  interfere  with  parties  under 
the  circumstances  above  mentioned,  for  the  purpose  of  car- 
rying out  the  principle  of  equality ;  it  could  not,  for  example, 
restrain  a  creditor  from  prosecuting  his  legal  demand  by 
legal  means,  merely  on  the  ground  that  the  result  would  give 
him  a  precedence  over  others ;  in  other  words,  the  principle 
of  equality  is  equity  was  not  of  itself  the  source  of  an  equi- 
table jurisdiction  which  would  not  otherwise  have  existed. 
The  true  doctrine  is,  that  wherever  a  court  of  equity,  upon 
any  ground  of  equitable  cognizance,  acquires  jurisdiction 
over  a  case  falling  under  the  general  condition  of  fact  men- 
tioned above,  it  will  apply  the  principle  of  equality  in  de- 
termining the  collective  rights  and  liabilities  of  all  the 
parties.^ 

§  407.  Under  the  limitation  last  stated,  that  the  subject- 
matter  properly  belongs  to  the  equitable  jurisdiction,  the 
following  general  principle  may  be  regarded  as  firmly  estab- 
lished and  of  wide  aj^plication :  Whenever  several  persons 
are  all  entitled  to  participate  in  a  common  fund,  or  are 
all  creditors  of  a  common  debtor,  equity  will  award  a  dis- 
tribution of  the  fund,  or  a  satisfaction  of  the  claims,  in 
accordance  with  the  maxim,  Equality  is  equity;  in  other 
words,  if  the  fund  is  not  sufficient  to  discharge  all  claims 
upon  it  in  full,  or  if  the  debtor  is  insolvent,  equity  will 
incline  to  regard  all  the  demands  as  standing  upon  an  equal 

§  406,  (a)  The  text  is  cited  to  this  ment  Co.  v.  Logan,  196  Ala.  196,  72 
effect  in  Interstate  Land  &  Invest-       South.  36. 


765  EQUALITY    IS    EQUITY.  §  408 

footing,  and  will  decree  a  pro  rata  distribution  or  payment. 
On  the  other  hand,  whenever  a  common  liability  rests  upon 
several  persons  in  favor  of  a  single  claimant,  equity  will 
enforce  such  liability  upon  all  the  class  in  accordance  with 
the  same  maxim,  Equality  is  equity.  It  will  apply  the 
maxim  either  directly,  by  apportioning  the  burden  ratably 
among  all  the  individuals  upon  whom  the  common  liability 
rests,  or  indirectly,  by  giving  a  right  of  contribution  to  the 
member  of  the  class  from  whom  a  payment  of  the  whole 
demand  has  been  obtained,  and  enabling  him  to  recover  con- 
tributory shares  of  the  amount  from  the  other  members  of 
the  class,  by  which  means  the  entire  burden  is  finally  ad- 
justed upon  and  among  them  all.*  It  will  be  easily  seen 
upon  examination  that  this  comprehensive  principle  of 
equity  lies  at  the  foundation  of  several  well-settled  doctrines 
of  the  jurisprudence,  and  that  it"  furnishes  the  rule  upon 
which  a  court  of  equity  proceeds  to  award  its  relief  in 
numerous  cases  which  do  not  fall  within  either  of  these 
special  doctrines. 

§  408.  Ownership  in  Common. — One  of  the  most  remark- 
able illustrations  of  the  principle,  being  in  direct  antag- 
onism with  a  specially  favorite  dogma  of  the  old  common 
law.  is  seen  in  the  preference  which  equity  gives  to  owner- 
ship in  common  over  joint  ownership  of  lands.  It  may  be 
stated  as  a  general  proposition  that  equity  alivays  leans  in 
favor  of  ownership  in  common,  and  wherever  it  is  possible 
to  do  so,  will  hold  an  ownership  to  be  in  common,  and 
thereby  disregard  the  legal  right  of  survivorship,  although 
at  law  the  ownership  would  be  strictly  joint.  It  was  an 
invariable  rule  of  the  common  law  that  when  purchasers 
take  a  conveyance  to  themselves  and  their  heirs,  they  will 
be  joint  tenants,  and  upon  the  death  of  one  of  them  the 

§  407,   (a)  The  text  is  cited  to  this  ment  of  common  burdens  or  charges, 

effect  in  Interstate  Land  &  Invest-  see  Chamblee  v.  Atlantic  Brewing  & 

ment  Co.  v.  Logan,  196  Ala.  196,  72  Ice  Co.,  131  Ga.  554,  62  S.  E.  1032; 

South.   36.     For  recent  instances   of  International   Paper   Co.   v.   Bellows 

jurisdiction  taken  for  the  apportion-  Falls  Canal  Co.   (Vt.),  100  Atl.  684. 


§  408  EQUITY    JURISPRUDENCE.  766 

estate  will  go  to  the  survivor.  The  same  rule  prevails  in 
Equity,  unless  circumstances  exist  from  which  a  contrary 
intention  of  the  parties  may  be  presumed,  enabling  a  court 
of  equity  to  disregard  the  legal  rule.i  The  same  is  true  of 
a  joint  contract  to  purchase  land,  made  by  two  or  more 
vendees,  where  they  have  paid  or  agreed  to  pay  the  pur- 
chase price  in  equal  proportions.  Equity  would  regard 
their  right  as  a  joint  one,  and  upon  the  death  of  one  vendee 
would  not  decree  a  conveyance  to  the  survivor  and  the  heirs 
of  the  deceased  vendee  as  owners  in  common.^  Although 
the  legal  rule  was  allowed  to  operate  under  these  special 
circumstances,  still,  equity  leans  very  strongly  against  joint 
ownership.  Whenever  circumstances  occur  from  which  it 
can  reasonably  be  implied  that  a  tenancy  in  common  was 
intended,  a  court  of  equity  will  hold  the  ownership  to  be 
in  common,  and  will  disregard  the  legal  right  of  survivor- 
ship by  declaring  the  survivors  to  be  trustees  of  the  legal 
estate  for  the  representatives  of  the  deceased  purchaser  or 
owner.  In  pursuance  of  this  view,  the  doctrine  was  well 
settled,  long  previous  to  all  legislation  on  the  subject,  that 
where  two  or  more  purchase  lands  and  advance  or  agree 
to  pay  the  purchase-money  in  unequal  proportions,  this 
makes  them  in  the  nature  of  partners,  and  however  the  legal 
estate  may  survive  on  the  death  of  one  of  them,  the  survivor 
will  be  considered  in  equity  as  only  a  trustee  for  the  rep- 
resentatives of    the  other,  in  proportion   to  the  sums  ad- 

§408,  lln  Lake  v.  Gibson,  1  Eq.  Cas.  Abr.  290,  pi.  3,  Sir  Joseph 
Jekyll,  M.  R.,  said  that  "where  two  or  more  purchase  land  and  advance 
the  money  in  equal  proportions,  and  take  a  conveyance  to  them  and  their 
heirs,  they  will  be  held  joint  tenants  in  equity,  as  well  as  at  law,  upon  this 
principle,  that  it  may  be  presumed  they  intended  to  purchase  jointly  the 
chance  of  survivorship.  The  rule  of  law,  therefore,  not  being  repugnant 
to  the  presumed  intention  of  the  parties,  will  be  followed  in  equity."  See, 
also,  Taylor  v.  Fleming,  cited  in  York  v.  Eaton,  Freem.  23;  Rigden  v. 
Vallier,  3  Atk.  735,  2  Ves.  Sr.  258;  Harris  v.  Fergusson,  16  Sim.  308. 

§  408,  2  Avelmg  v.  Knipe,  19  Ves.  441,  per  Sir  William  Grant,  M.  R.j 
Davis  V.  Symonds,  1  Cox,  402. 


767  EQUALITY    IS   EQUITY.  §  408 

vanced  by  eacli  of  them.^  a  This  equitable  doctrine  is 
always  applied  to  mortgagees.  Where  money  is  advanced 
by  two  or  more  persons,  no  matter  whether  in  equal  or 
unequal  proportions,  and  they  take  a  mortgage  to  them- 
selves jointly,  in  law  their  estate  is  joint,  and  on  the  death 
of  one  the  debt  and  the  security  would  belong  wholly  to 
the  survivor.  In  equity,  however,  the  interest  of  the  mort- 
gagees is  in  common,  and  on  the  death  of  one  the  survivor 
is  held  a  trustee  for  the  personal  representatives  of  the 
deceased  mortgagee.^  ^  These  equitable  doctrines,  draw- 
ing such  a  distinction  between  conveyances,  contracts  for 
purchase,  and  mortgages  at  law  and  in  equity,  were  estab- 
lished before  any  statutes  had  changed  the  legal  view,  but 
they  have  become  unnecessary  and  obsolete  in  the  United 
States,  in  consequence  of  modern  legislation.  This  legis- 
lation throughout  all  the  states  has  declared  that  a  convey- 
ance of  land  to  two  or  more  grantees  shall,  unless  a  con- 
trary intention  is  clearly  expressed,  create  an  ownership  in 
common,  and  not  a  joint  ownership.  As  the  original  doc- 
trine of  equity  is  thus  incorporated  into  the  law  by  statute, 
there  is  no  longer  any  need  of  the  equitable  rule  as  above 

§  408,  3  Lake  v.  Gibson,  1  Eq.  Cas.  Abr.  294,  pi.  3,  1  Lead.  Cas.  Eq., . 
4th  Am.  ed.,  264,  268;  Rigden  v.  Vallier,  3  Atk.  735,  2  Ves.  Sr.  258; 
Duncan  v.  Forrer,  6  Binn.  193,  196;  Caines  v.  Lessee  of  Grant,  5  Binn. 
119,  120;  Currie  v.  Tibb's  Heirs,  5  T.  B.  Men.  440,  443;  Overton  v.  Lacy, 
6  T.  B.  Mon.  13,  15,  17  Am.  Dec.  Ill;  Cuyler  v.  Bradt,  2  Caines  Cas.  326; 
Mayburry  v.  Brien,  15  Pet.  21,  36.  The  soundness  of  this  distinction  be- 
tween equal  and  unequal  advances  has  been  doubted.  See  note,  by  Mr. 
Yesey,  to  Jackson  v.  Jackson,  9  Ves.  597;  but  the  doctrine  is  ex^jressly 
sustained  and  approved  by  the  high  authority  of  Lord  St.  Leonards.  See 
Sugden  on  Vendors,  11th  ed.,  p.  902. 

§  408,  4  Petty  v.  StyAvard,  1  Ch.  Rep.  3,  1  Eq.  Cas.  Abr.  290 ;  Rigden 
V.  Vallier,  2  Ves.  Sr.  258;  Morley  v.  Bird,  3  Ves.  631,  per  Lord  Alvanley, 
M.  R.;  Robinson  v.  Preston,  4  Kay  &  J.  505,  511;  Randall  v.  Phillips,  3 
Mason,  378,  384;  Appleton  v.  Boyd,  7  Mass.  131,  134;  Goodwin  v.  Rich- 
ardson, 11  Mass.  469;  Kinsley  v.  Abbott,  19  Me.  430,  434." 

§408,    (a)    See    Palmer    v.    Rich,  §408,    (b)    The  text  is  quoted  in 

[1897]  1  Ch.  134,  143.  Aubry    v.    Schneider,    69    N.   J.   Eq. 

629,  60  Atl.  929. 


§  409  EQUITY    JURISPRUDENCE.  768 

described.  Furthermore,  either  as  an  inference  from  the 
statutes,  or  from  the  gradual  adoption  of  equitable  prin- 
ciples, the  right  and  interest  of  two  or  more  vendees  in  a 
contract  for  the  purchase  of  land  is  no  longer  strictly  joint, 
even  at  law,  in  a  great  majority  of  the  states ;  that  is,  the 
right  and  interest  of  the  heirs  and  representatives  of  a  de- 
ceased vendee  are  fully  recognized  and  protected.  Finally, 
by  the  equitable  theory  of  the  mortgage,  which,  as  has  been 
shown,  prevails  in  nearly  all  the  states,  the  interest  of  the 
mortgagee  being  regarded  as  personal  property,  and  not  as 
an  estate  in  the  land,  the  right  of  two  or  more  mortgagees 
is  not  strictly  joint,  when  considered  with  reference  to  third 
persons,  or  even  to  the  mortgagor  himself. 

§  409.  Joint  Liability — Death  of  a  Joint  Debtor. — An- 
other admirable  illustration  of  the  principle  that  equality  is 
equity  is  shown  in  the  case,  analogous  to  the  one  last  de- 
scribed, of  the  mode  in  which  equity  treats  a  liability  aris- 
ing out  of  contract  joint  at  law.  It  is  one  of  the  oldest  and 
most  familiar  doctrines  of  the  law,  that  when  two  or  more 
persons  promise  or  bind  themselves  to  pay  a  sum  of  money, 
or  to  do  any  other  act,  their  obligation  and  liability  are 
joint.  It  followed  from  the  legal  conception  of  a  joint  obli- 
gation that  when  one  of  the  joint  debtors  dies,  the  liability 
on  his  part  and  on  the  part  of  his  estate  ipso  facto  ceases, 
and  the  only  obligation  for  the  entire  debt  rests,  at  law, 
upon  the  survivor  or  survivors ;  he  or  they  alone  could  be 
sued  at  law  by  the  creditor. ^  The  injustice  which  might 
result  from  this  purely  technical  rule  of  the  law  is  very 
apparent.  The  doctrine  of  equity  is  quite  different.  Pre- 
suming upon  the  reasonable  presumption  that  it  is  the  in- 
tention of  the  parties  in  every  such  agreement  that  the 
creditor  shall  have  the  several  as  well  as  the  joint  obligation 
of  each  debtor  as  a  security  for  the  payment  or  perform- 
ance, equity  declares,  as  a  general  rule,  that  every  contract 

§409,  lEx  parte  Kendall,  17  Ves.  525;  Gray  v.  Chiswell,  9  Ves.  118; 
Weaver  v.  Shryock,  6  Serg.  &  R.  262,  264;  Cairns  v.  O'Bleness,  40  Wis. 
469;  Jones  v.  Keep,  23  Wis.  45;  Morehouse  v.  Ballou,  16  Barb.  289. 


769  EQUALITY    IS    EQUITY.  §  409 

merely  joint  at  law  shall  be  regarded,  as  against  the  debtor 
parties,  a  joint  and  several  undertaking,  creating  a  joint  and 
several  obligation.  Asa  consequence  of  this  eqiiitaljle  view 
of  the  obligation,  the  doctrine  is  settled,  that  upon  the  death 
of  one  of  the  debtors  the  liability  does  not  remain  upon 
the  survivors  alone.  If  the  survivors  or  survivor  are  insol- 
vent, or  if  the  creditor  has  exhausted  his  ordinary  legal 
remedies  against  them  in  vain,  by  means  of  a  judgment  and 
an  execution  returned  unsatisfied,  then  such  creditor  may 
maintain  a  suit  in  equity  against  the  personal  representa- 
tives of  the  deceased  debtor,  and  enforce  payment  out  of 
his  estate. 2  In  England,  the  doctrine,  as  settled  by  the 
modern  decisions  is  still  broader  and  more  efficient.  The 
creditor  is  entitled  to  sue  the  personal  representatives  of 
the  deceased  debtor  in  equity  at  once,  without  attempting, 
much  less  exhausting,  any  legal  remedy  against  the  sur- 
vivor. In  other  words,  the  creditor  has  at  all  times  the 
option  to  sue  the  survivor  at  law  or  the  representatives  of 
the  deceased  in  equity,  whether  the  survivors  are  solvent 
or  not;  and  this  rule  has  been  adopted  in  some  of  the 
American  states.^     In  certain  of  the  states,  the  common- 

§409,  2Voorhis  v.  ChUd's  Ex'rs,  17  N.  Y.  354;  Richter  v.  Poppen- 
hausen,  42  N.  Y.  373;  Pope  v.  Cole,  55  N.  Y.  124,  14  Am.  Rep.  198;  Lane 
V.  Doty,  4  Barb.  534;  Bentz  v.  Thurber,  1  Thomp.  &  C.  645;  Yates  v. 
Hoffman,  5  Hun,  113;  Hasten  v.  Blackwell,  8  Hun,  313;  Bradley  v.  Bur- 
well,  3  Denio,  61 ;  Maples  v.  Geller,  1  Nev.  233,  237,  239 ;  Fowler  v.  Hous- 
ton, 1  Nev.  469,  472;  Barlow  v.  Scott's  Adm'r,  12  Iowa,  63;  Pecker  v. 
Cannon,  11  Iowa,  20 ;  Marsh  v.  Goodrell,  11  Iowa,  474 ;  Williams  v.  Scott's 
Adm'r,  11  Iowa,  475;  People  v.  Jenkins,  17  Cal.  500;  Humphreys  v. 
Crane,  5  Cal.  173;  May  v.  Hanson,  6  Cal.  642  (but  see  Bank  of  Stockton 
V.  Howland,  42  Cal.  129;  Hamersley  v.  Lambert,  2  Johns.  Ch.  509,  510; 
Hunt  V.  Rousmaniere,  8  Wheat.  212,  213,  1  Pet.  16;  Devaynes  v.  Noble, 
1  Mer.  538,  539 ;  Ex  parte  Kendall,  17  Ves.  514,  526,  527 ;  Ex  parte  Ruffin, 
6  Ves.  125,  126;  Gray  v.  Chiswell,  9  Ves.  118;  Campbell  v.  Mullett,  2 
Swanst.  574,  575;  Cowell  v.  Sikes,  2  Russ.  191;  Towers  v.  Moor,  2  Vern. 
98;  Simpson  v.  Vaughan,  2  Atk.  31. 

§  409,  3  Wilkinson  v.  Henderson,  1  Mylne  &  K.  582 ;  Braitbwaite  v. 
Britain,  1  Keen.  219;  Brown- v.  Weatherby,  12  Sim.  6,  11;  Devaynes  v. 
Noble,  2  Russ.  &  M.  495;  Thorpe  v.  Jackson,  2  Younge  &  C.  553,  56.L,  562; 
1—49 


§  409  EQUITY    JURISPRUDENCE.  770 

law  dogma  concerning  joint  debtors  has  been  wholly  abro- 
gated. Special  provisions  of  their  codes  of  procedure,  or 
of  other  statutes,  expressly  authorize  a  legal  action  to  be 
brought  in  the  first  instance  against  the  survivors  and  the 
personal  representatives  of  the  deceased  joint  debtor,  or 
even  against  some,  any,  or  one  of  them,  at  the  option  of  the 
creditor  who  sues.^  There  is  one  important  exception,  as 
established  by  the  courts  in  England  and  in  many  of  the 
United  States,  to  the  doctrine  that  equity  will  regard  and 

Freeman  v.  Stewart,  41  Miss.  138.  In  Indiana  it  has  been  held  that  the 
Code  of  Procedure,  by  abolishing  the  distinctions  between  legal  and  equi- 
table actions,  and  introducing  the  equitable  doctrines  concerning  parties, 
and  providing  for  the  severance  of  the  judgment,  has,  without  any  special 
provision  on  the  subject,  introduced  this  equitable  rule  into  the  law.  In 
other  words,  it  is  settled  in  that  state,  upon  a  just  interpretation  of  the 
code,  that  upon  the  death  of  one  joint  or  joint  and  several  debtor,  a  legal 
action  will  lie  at  once  against  the  survivors  and  the  administrators  or 
executors  of  the  deceased  as  co-defendants :  Braxton  v.  State,  25  Ind.  82 ; 
Eaton  V.  Bums,  31  Ind.  390;  Klussmann  v.  Copeland,  18  Ind.  30G;  Voris 
V.  State  ex  rel.  Davis,  47  Ind.  345,  349,  350;  Myers  v.  State  ex  rel.  Mc- 
Cray,  47  Ind.  293,  297;  Owen  v.  State,  25  Ind.  371.  In  Braxton  v.  State, 
25  Ind.  82,  the  action  was  against  the  three  survivors  and  the  adminis- 
trators of  the  deceased  obligors  on  a  bond.  After  stating  that  there  were 
no  special  provisions  on  the  subject  in  the  Indiana  code  (as  there  are  in 
some  of  the  states),  and  after  quoting  the  sections  concerning  forms  of 
action  and  parties  defendant,  Elliott,  J.,  proceeds:  "It  was  manifestly  the 
intention  of  the  legislature,  in  the  adoption  of  these  provisions,  to  afford 
as  far  as  possible  a  simple  and  direct  means  of  bringing  all  the  parties 
having  an  interest  in  the  controversy  before  the  court,  and  of  settling  all 
their  rights  in  a  single  litigation,  and  thereby  to  avoid  a  multiplicity  of 
suits."  The  decision  in  Voorhis  v.  Child's  Ex'rs,  17  N.  Y.  354,  was  ex- 
pressly disapproved.  In  these  cases  the  Indiana  court  has,  in  my  opinion, 
interpreted  the  Code  of  Procedure  in  accordance  with  its  true  spirit  and 
intent.  The  same  construction  has  been  given  to  similar  sections  of  the 
code,  and  the  same  rule  adopted  by  the  supreme  court  of  California  in  the 
very  recent  case  of  Bostwick  v.  McEvoy,  55  Cal.  496. 

§  409,  4  Iowa:  Code,  §  2550;  Sellon  v.  Braden,  13  Iowa,  365.  The  Iowa 
cases  cited  in  the  preceding  note  under  this  paragraph  were  decided  before 
the  provision  referred  to  was  enacted.  Kentucky:  Code,  §  39.  Missouri: 
Code,  art.  1,  §  7;  1  Wagner's  Stats.,  p.  269,  §§  1^.  Kansas:  Gen.  Stats. 
1868,  chap.  21,  §§  1^.  Ohio:  Swann's  Rev.  Stats.  378;  Burgoyne  v.  Ohio 
Life  Ins.,  etc.,  Co.,  5  Ohio  St.  586,  587. 


771  EQUALITY  IS  EQUITY.  §  410 

treat  a  joint  obligation  arising  from  contract  as  joint  and 
several,  so  as  to  render  the  estate  of  a  deceased  debtor 
liable  to  a  suit  in  equity  brought  by  the  creditor;  and  that 
is,  where  the  deceased  debtor  is  a  surety.  It  is  well  settled, 
"that  if  the  joint  obligor  so  dying  be  a  surety,  not  liable 
for  the  debt  irrespective  of  the  joint  obligation,  his  estate 
is  absolutely  discharged  both  at  law  and  in  equity,  the  sur- 
vivor only  being  liable.  In  such  case,  where  the  surety  owed 
no  debt  outside  and  irrespective  of  the  joint  obligation,  the 
contract  is  the  measure  and  limit  of  his  obligation.  He 
signs  a  joint  contract  and  incurs  a  joint  liability,  and  no 
other.  Dying  prior  to  his  co-maker,  the  liability  all  attaches 
to  the  survivor."  ^ 

§  410.  Settlement  of  Insolvent  Estates — Marshaling  of 
Assets. a — Another  remarkable  and  most  just  application  of 
the  pi-inciple,  often  leading  to  results  very  different  from 
those  produced  by  the  operation  of  legal  rules,  may  be  seen 
in  all  those  instances  where  a  court  of  equity  acquires  juris- 
diction, from  any  cause,  to  wind  up,  distribute,  or  settle  an 
estate,  property,  or  fund  against  which  there  are  a  number 
of  separate  claimants.     One  example  is  that  of  settling  the 

§  409,  5  Getty  v.  Binsse,  49  N.  Y.  3S5,  388,  389, 10  Am.  Rep.  379 ;  Wood  v. 
risk,  63  N.  Y.  245,  20  Am.  Rep.  528 ;  Pickersgill  v.  Lahens,  15  Wall.  140 ; 
United  States  v.  Price,  9  How.  92;  Harrison  v.  Field,  2  Wash.  (Va.)  136; 
Weaver  v.  Shryock,  6  Serg.  &  R.  262,  264,  265;  Missouri  v.  Tank,  51  Mo. 
98;  Simpson  v.  Field,  2  Cas.  Ch.  22;  Sumner  v.  Powell,  2  Mer.  30,  per 
Sir  William  Grant,  M.  R.;  affirmed  on  appeal,  1  Turn.  &  R.  423,  per  Lord 
Eldon;  Other  v.  Iveson,  3  Drew.  177;  Richardson  v.  Horton,  6  Beav.  185; 
Jones  V.  Beach,  2  De  Gex,  M.  &  G.  886;  Wilmer  v.  Currey,  2  De  Gex  &  S. 
347.  In  some  of  the  states,  however,  either  from  the  effect  of  special 
statutes  or  from  a  different  view  of  equity  taken  by  the  courts,  this  excep- 
tion has  not  been  adopted,  and  the  estate  of  a  deceased  joint  surety  is 
liable  in  the  same  manner  as  that  of  any  other  deceased  joint  debtor.  See 
Voris  V.  State,  47  Ind.  345,  349,  350;  Myers  v.  State,  47  Ind.  293,  297. 

§  410,    (a)    This  paragraph   of   the  equity.     This     paragraph     is     cited, 

text  is  cited  in  Blair  v.  Smith,  114  also,    in  Interstate   Land   &   Invest- 

Ind.    114,    5    Am.    St.    Kep,    593,    15  ment  Co.  v.  Logan,  196  Ala.  196,  72 

N.    E.    817,   822,   as   illustrating   the  South.  36. 
allowance     of    pecuniary    relief    in 


§  411  EQUITY    JURISPEUDENCE.  772 

affairs  of  an  insolvent  partnership,  corporation,  or  indi- 
vidual debtor  in  a  creditor's  suit  brought  by  one  on  behalf 
of  all  other  creditors,  where  the  assets  are  not  sufficient 
to  satisfy  all  demands  in  full;  the  court  always  proceeds 
upon  the  principle  that  equality  is  equity,  and  of  appor- 
tioning the  property  pro  rata  among  all  the  creditors.^  The 
principle  is  carried  to  such  an  extent  in  the  settlement  of 
insolvent  partnerships,  and  partnerships  where  one  of  the 
members  has  died,  that  firm  creditors  are  compelled  in  the 
first  instance  to  resort  to  the  firm  assets,  and  creditors  of 
the  individual  partners  to  individual  assets,  before  either 
class  can  have  recourse  to  any  balance  left  remaining  of 
the  other  kind  of  fund.  A  second  example  is  that  of  mar- 
shaling the  assets  in  the  administration  of  the  estates  of 
deceased  persons.  At  the  common  law  certain  classes  of 
creditors  enjoyed  a  precedence  over  others,  and  were  enti- 
tled to  be  paid  in  full,  even  to  the  exclusion  of  the  inferior 
orders,  by  the  administrator  or  executor  out  of  the  legal 
assets  of  the  decedent's  estate,  according  to  their  established 
priority  of  right.  But  a  court  of  equity,  having  obtained 
jurisdiction  over  an  administration,  regards  all  debts,  in 
general,  as  standing  upon  an  equal  footing,  and  as  entitled 
to  payment  pro  rata  out  of  the  equitable  assets,  if  the  estate 
is  not  sufficient  to  pay  them  all  in  full,  without  any  refer- 
ence to  their  legal  right  of  priority.  In  order  to  attain  this 
result,  and  to  carry  out  the  principle  of  equality  is  equity 
in  administrations,  the  doctrine  of  marshaling  assets  was 
established. 

§  411.    Abatement  of  Legacies;  Apportionment  of  Liens; 
Appointment  Under  Trust  Powers ;  and  Contribution  Among 

§  410,  (b)  The  text  is  quoted  in  In  creditors      alike.      "Equity  .  .  .  im- 

re  Lord  &  Polk  Chemical  Co.,  7  Del.  putes    no    particular    merit    to    dili- 

Ch.    248,   44    Atl.    775,   holding   that  gence  unless  the  advantage  thereby 

the   funds   of   an  insolvent   corpora-  acquired  amounts  to  a  lien,  or  some 

tion    in    a   receiver's    hands,    in    the  vested     right      or     interest,     which 

absence    of   a   statute    prescribing   a  neither  equity  or  law  will  allow  to 

different  order,  should  be  distributed  be  disturbed." 
to    simple    contract    and    judgment 


773  EQUALITY  IS  EQUITY.  §  411 

Co-contractors  and  Co-sureties. — Among  the  other  doctrines 
derived  from  the  principle  that  equality  is  equity  as  their 
source  are  the  following:  The  abatement  of  legacies, 
whereby  a  pro  rata  deduction  is  made  from  all  legacies  of 
the  same  class  when  the  assets  are  insufficient  to  pay  all 
m  full.  It  is  true  that  the  principle  is  not  carried  out  with 
absolute  rigor  in  the  case  of  legacies,  since  two  different 
classes  are  admitted, — the  * 'general"  and  the  "specific," 
the  latter  being  entitled  to  priority  of  payment.  But  the 
deduction  is  applied  to  all  those  which  belong  to  the  same 
class,  and  the  leaning  is  strongly  in  favor  of  placing  any 
particular  legac*^'  in  the  ''general"  class.^  The  apportion- 
ment of  the  money  secured  by  mortgages  or  other  encum- 
brances among  the  various  owners  of  the  different  parcels 
into  which  the  mortgaged  premises  have  been  di\dded: 
Whenever  a  mortgage  or  other  encumbrance  has  been 
placed  upon  a  tract  of  land,  and  the  tract  is  subsequently 
conveyed,  subject  to  the  mortgage,  in  parcels  to  different 
owners,  or  liens  or  other  interests  in  distinct  portions  of 
the  land  are  subsequently  acquired  by  different  persons, 
in  adjusting  the  payment  of  the  whole  mortgage  debt,  either 
voluntarily  by  way  of  redemption,  or  forcibly  by  way  of 
foreclosure,  equity  applies,  unless  some  other  controlling 
equitable  consideration  interfere,  the  principle  of  equality; 
in  other  words,  equity  makes  a  pro  rata  apportionment 
among  all  the  owners  of  parcels  and  holders  of  liens  or 
interests.^  It  should  be  observed,  however,  that  this  par- 
ticular application  of  the  principle  is  not  universal ;  for  in 
several  of  the  states,  on  account  of  other  assumed  equitable 
considerations,  a  different  rule  has  been  adopted.  The 
whole  subject  is  examined  in  the  subsequent  chapter  on 
mortgages. <5  The  execution  of  a  power  in  trust  when  the 
donee  has  failed  to  act  under  it:  A  power  in  trust  partakes 
so  much  of  the  nature  of  an  express  active  trust,  that  if 

§411,   (a)   See  vost,   §§1135-1143.       Coffin  v.  Parker,   127  N.  Y.  117,  27 

§411,    (b)    The    text    is    cited    in       ^-  ^-  ^^*- 

§411,    (c)    See  post,   §§1221-1226. 


§  411  EQUITY    JURISPRUDENCE.  774 

the  donee  upon  whom  it  was  conferred  fails  to  make  any 
appointment  under  it,  a  court  of  equity  will  not  suffer  the 
power  to  wholly  fail,  but  will  carry  it  into  effect,  in  accord- 
ance with  its  own  principle  of  equality.^  Where  a  power 
in  trust  is  given  to  appoint  among  the  members  of  a  desig- 
nated class,  as  among  ''the  children"  of  the  donee,  and  the 
like,  the  donee  upon  whom  the  power  is  conferred  can  ap- 
point in  favor  of  any  one  of  the  class,  and  a  court  of  equity 
will  not  interfere  with  his  discretion.^  "Where  the  donee, 
however,  fails  to  make  any  appointment,  and  of  course 
makes  no  selection  of  a  particular  beneficiary  out  of  the 
class,  a  court  of  equity  will  carry  out  the  power,  under  the 
principle  of  equality,  by  dividing  the  fund  subject  to  the 
power  in  equal  shares  among  all  the  persons  composing 
the  designated  class.^  ^  Finally,  the  most  important  doc- 
trine, perhaps,  which  results  from  the  principle,  Equality  is 
equity,  is  that  of  contribution  among  joint  debtors,  co-sure- 
ties, co-contractors,  and  all  others  upon  whom  the  same 
pecuniary  obligation  arising  from  contract,  express  or 
implied,  rests.  This  doctrine  is  evidently  based  upon  the 
notion  that  the  burden  in  all  such  cases  should  be  equally 
borne  by  all  the  persons  upon  whom  it  is  imposed,  and  its 
necessary  effect  is  to  equalize  that  burden  whenever  one  of 
the  parties  has,  in  pursuance  of  his  mere  legal  liability,  paid 
or  been  compelled  to  pay  the  whole  amount,  or  any  amount 
greater  than  his  proportionate  share.  No  more  just  doc- 
trine is  found  in  the  entire  range  of  equity;  and  although 
it  is  now  a  familiar  rule  of  the  law,  it  should  not  be  for- 
gotten that  its  conception  and  origin  are  wholly  due  to  the 
creative  functions  of  the  chancellor.^ 

§  411,  1  Brown  v.  Higgs,  8  Ves.  570,  5  Ves.  495,  4  Ves.  708 ;  Harding 
V.  Glyu,  1  Atk.  469;  Salusbury  v.  Denton,  3  Kay  &  J.  529. 

§  411,  2  See  cases  last  cited,  and  Willis  v.  Kymer,  L.  R.  7  Ch.  Div.  183. 

§  411,  3  Willis  V.  KjTner,  L.  R.  7  Ch.  Div.  183 ;  Salusbury  v,  Denton, 
3  Kay  &  J.  529. 

§411,   (d)   See  post,   §1002,   as   to  §411,    (e)    See    §1418.     This   pas- 

powers  in  trust.  sage  of  the  text  is  quoted  in   Cam- 


775         EQUAL  EQUITIES,    FIRST   IN    ORDER   OF   TIME.       §§412,413 

§  412.  Conclusion. — The  preceding  paragraphs  give  a 
sufficient  illustration  of  the  principle,  Equality  is  equity; 
and  they  demonstrate  the  fact  that  a  court  of  equity  en- 
deavors to  carry  the  maxim  into  operation  in  the  adminis- 
tration of  remedies  whenever  jurisdiction  is  for  any  cause 
obtained  over  the  subject-matter  of  a  controversy.  The 
various  doctrines  which  I  have  mentioned  as  originating 
from  this  principle,  and  the  cases  selected  as  examples  of 
its  operation,  will  be  fully  examined  in  the  subsequent 
chapters  of  this  work. 


SECTION  VI. 

WHERE  THERE  ARE  EQUAL  EQUITIES,  THE  FIRST  IN  ORDER 
OF  TIME  SHALL  PREVAIL. 

ANALYSIS. 

§  413.     Its  application. 

§  414.     Its  true  meaning;  opinion  in  Rice  v.  Bice. 

§  415.     Its  effect  upon  equitable  doctrines. 

§413.  Its  Application.^ — The  "equities'*  spoken  of  in 
this  maxim  embrace  both  equitable  estates,  interests,  and 
primary  rights  of  property,  such  as  the  cestui  que  trust's 
estate  in  any  species  of  trust,  the  mortgagee's  equitable 
interest,  equitable  liens,  the  interest  of  the  assignee  under 
an  equitable  assignment,  and  the  like,  and  also  the  purely 
remedial  rights,  or  rights  to  some  purely  equitable  remedy, 
to  which  the  distinctive  name  ''equity"  has  been  given  by 

pau  V.  Detroit  Driving  Club  (Mich.),  lowing  paragraphs  of  the  text  are 
98  N.  W.  267.  This  paragraph  is  cited  and  quoted  in  Campbell  v.  Sid- 
cited  in  Sprowls  v.  Sprowls,  34  S.  D.  well,  61  Ohio  St.  179,  55  N.  E.  609. 
140,  Ann.  Cas.  1917A,  830,  147  N.  W.  Sections  413^17  are  cited  in  Pugh 
645  J  Sicklesteel  v.  Edmonds,  158  v.  Whitsitt  &  Guerry  (Tex.  Civ. 
Wis.  122,  147  N.  W.  1024  (common  App.),  161  S.  W.  953.  This  para- 
liability  of  subscribers  to  a  joint  graph  is  cited  in  Wasserman  v. 
adventure) ;  Interstate  Land  &  In-  Metzger,  105  Va.  744,  7  L.  R.  A. 
vestment  Co.  v.  Logan,  196  Ala.  (N.  S.)  1019,  54  S.  E.  893,  dissent- 
196,  72  South.  36.  ing  opinion. 
§413,    (a)    This   and   the   two   fol- 


§  414  EQUITY    JURISPRUDENCE.  776 

modern  judges  and  text-writers;  sncli,  for  example,  as  the 
equitable  right  to  a  reformation.  With  respect  to  "equi- 
ties" considered  in  this  comprehensive  manner,  and  to  many 
legal  interests,  the  maxim,  Qui  prior  est  tempore,  potior  est 
jure,  is  of  wide  and  important  application  both  in  equity 
and  at  law. 

§  414.  Its  True  Meaning — Rice  v.  Rice. — The  true  mean- 
ing and  effect  of  the  principle,  When  there  are  equal  equi- 
ties, the  first  in  order  of  time  shall  prevail,  have  often  been 
misunderstood ;  and  its  correct  signification  cannot  be  better 
explained  than  by  employing  the  exact  language  used  by  a 
very  able  English  equity  judge,  in  a  recent  case,i  as  follows : 
"What  is  the  rule  of  a  court  of  equity  for  the  determining 
the  preference  as  between  persons  having  adverse  equitable 
interests'?  The  rule  is  sometimes  expressed  in  this  form, 
As  between  persons  having  only  equitable  interests,  qui 
prior  est  tempore,  potior  est  jure.  This  is  an  incorrect 
statement  of  the  rule,  for  that  proposition  is  far  from  being 
invariably  true.  In  fact,  not  only  is  it  not  universally  true 
as  between  persons  having  only  equitable  interests,  but  it 
is  not  universally  true  even  where  their  equitable  interests 
are  of  precisely  the  same  nature,  and  in  that  respect  pre- 
cisely equal ;  as  in  the  common  case  of  two  successive  assign- 
ments for  a  valuable  consideration  of  a  reversionary  inter- 

§  414,  1  Rice  v.  Rice,  2  Drew.  73.  A  grantor  conveyed  land  without 
receiving  his  purchase-money,  but  the  receipt  of  it  was  indorsed  on  the 
deed,  and  the  title  deeds  were  delivered  to  the  grantee.  Of  course  a  ven- 
dor's lien  at  once  arose  as  security  for  the  unpaid  price,  which  was  at  least 
valid  between  the  grantor  and  the  grantee,  and  was  prior  to  any  equity 
thereafter  created  by  the  grantee.  The  grantee  afterwards  borrowed 
money,  and  to  secure  its  payment  made  an  equitable  mortgage  of  the  land 
by  a  deposit  of  the  title  deeds  with  the  creditor.  Held,  that,  as  between 
the  vendor's  lien  and  the  lien  of  the  equitable  mortgage,  the  possession  of 
the  title  deeds  by  the  grantee,  and  the  receipt  of  the  price-  indorsed  on 
the  deed  of  conveyance,  operated  to  make  the  latter  lien  superior  to  the 
former,  and  thus  overcame  the  effect  of  priority.  The  two  equities  were 
not  equal.  In  his  opinion  the  vice-chancellor  used  the  language  quoted  in 
the  text. 


777  EQUAL  EQUITIES,   FIRST   IN    OEDER  OF  TIME.  §  41-1 

est  in  stock  standing  in  the  names  of  trustees,  where  the 
second  assignee  has  given  notice  [to  the  trustee]  and  the 
first  has  omitted  it.^  Another  form  of  stating  the  rule  is 
this,  As  between  persons  having  only  equitable  interests,  if 
their  equities  are  equal,  qui  prior  est  tempore,  potior  est 
jure.  This  form  of  stating  the  rule  is  not  so  obviously  in- 
correct as  the  former.  And  yet,  even  this  enunciation  of 
the  rule,  when  accurately  considered,  seems  to  me  to  in- 
volve a  contradiction.  For  when  we  talk  of  two  persons 
having  equal  or  unequal  equities,  in  what  sense  do  we  use 
the  term  'equity'?  For  example,  when  we  say  that  A  has 
a  better  equity  than  B,  what  is  meant  by  that?  It  means 
only  that  according  to  those  principles  of  right  and  jus- 
tice which  a  court  of  equity  recognizes  and  acts  upon,  it 
will  prefer  A  to  B,  and  will  interfere  to  enforce  the  rights 
of  A  as  against  B;  and  therefore  it  is  impossible  (strictly 
speaking)  that  two  persons  should  have  equal  equities  ex- 
cept in  a  case  in  which  a  court  of  equity  would  altogether 
refuse  to  lend  its  assistance  to  either  party  as  against  the 
other.  If  the  court  will  interfere  to  enforce  the  right  of 
one  against  the  other  on  any  ground  whatever,  say  on  the 
ground  of  priority  of  time,  how  can  it  be  said  that  the 
equities  of  the  two  are  equal?  i.  e.,  in  other  words,  how  can 
it  be  said  that  the  one  has  no  better  right  to  call  for  the 
interference  of  a  court  of  equity  than  the  other?  To  lay 
down  the  rule,  therefore,  with  perfect  accuracy,  I  think  it 
should  be  stated  in  some  such  form  as  this :  As  between  per- 
sons having  only  equitable  interests,  if  their  interests  are 
in  all  other  respects  equal,  priority  in  time  gives  the  better 
equity;  or.  Qui  prior  est  tempore,  potior  est  jure.  I  have 
made  these  observations,  not,  of  course,  for  the  purpose  of 
mere  verbal  criticism  on  the  enunciation  of  a  rule,  but  in 
order  to  ascertain  and  illustrate  the  real  meaning  of  the 
rule  itself.  And  I  think  the  meaning  is  this :  that  in  a  con- 
test between  persons  having  only  equitable  interests,  pri- 

§  414,  2  Here  the  second  assignee  would  obtain  priority  over  the  first : 
See  Loveridge  v.  Cooper,  3  Russ.  30. 


§  414  EQUITY   JURISPRUDENCE.  778 

ority  of  time  is  the  ground  of  preference  last  resorted  to  ; 
i.  e.,  that  a  court  of  equity  will  not  prefer  the  one  to  the 
other  on  the  mere  ground  of  priority  of  time,  until  it  finds, 
upon  an  examination  of  their  relative  merits,  that  there  is 
no  other  sufficient  ground  of  preference  between  them,  or 
in  other  words,  that  their  equities  are  in  all  respects  equal ; 
and  that  if  the  one  has  on  other  grounds  a  better  equity  than 
the  other,  priority  of  time  is  immaterial.*  In  examining 
into  the  relative  merits  (or  equities)  of  two  parties  having 
adverse  equitable  interests,  the  points  to  which  the  court 
must  direct  its  attention  are  obviously  these:  the  nature 
and  condition  of  their  respective  equitable  interests,  the 
circumstances  and  manner  of  their  acquisition,  and  the 
whole  conduct  of  each  party  with  respect  thereto.  And  in 
examining  into  these  points,  it  must  apply  the  test,  not  of 
any  technical  rule,  or  any  rule  of  partial  application,  but 
the*same  broad  principles  of  right  and  justice  which  a  court 
of  equity  applies  universally  in  deciding  upon  contested 
rights.  "3b 

§  414,  3  I  add  to  the  foregoing  the  following  language  of  another  most 
able  equity  judge,  Lord  Westbury,  in  the  celebrated  case  of  Phillips  v. 
Phillips,  4  De  Gex,  F.  &  J.  208,  215:  "I  take  it  to  be  a  clear  proposition 
that  every  conveyance  of  an  equitable  interest  is  an  innocent  conveyance; 
that  is  to  say,  the  grant  of  a  person  entitled  merely  in  equity  passes  only 
that  which  he  is  justly  entitled  to,  and  no  more.  If,  therefore,  a  person 
seised  of  an  equitable  estate  (the  legal  estate  being  outstanding)  makes  an 
assurance  by  way  of  mortgage,  or  grants  an  annuity,  and  afterwards  con- 
veys the  whole  estate  to  a  purchaser,  he  can  grant  to  the  purchaser  that 
which  he  has,  viz.,  the  estate  subject  to  the  mortgage  or  annuity,  and  no 

§  414,   (a)   The  greater  portion  of  lustrations   of   the   meaning  of   "un- 

this  passage  is   quoted  in   Campbell  equal"  equities.     The  text  is  cited  in 

V.  Sidwell,  dl  Ohio  St.  179,  55  N.  E.  Himrod  t.   Oilman,   147   111.   293,   35 

609.  N.  E.  373,  and  in  Shaw  v.  Crandon 

§414,     (b)     This    portion    of    the  State  Bank,  145  Wis.  639,  129  N.  W. 

opinion  in  Rice  v.  Eice  is  quoted  in  794   (where  a  mortgage  secures  sev- 

Dueber     Watch-Case     Mfg.     Co.     v.  era!  notes,  rule  of   priority   of  note 

Daughcrty,  62  Ohio  St.  589,  57  N.  E.  first  falling  due  applies  only  where 

455,   and  in  Frost  v.  Wolf,  77  Tex.  the    parties    owning    the    respective 

455,  19  Am.  St.  Eep.  761,  14  S.  W.  notes  stand  equal  in  equity  with  re- 

440;   both   cases  presenting  good  il-  spect  to  the  manner  of  acquisition). 


779  EQUAL  EQUITIES,  FIRST  IN   ORDER  OF  TIME.  §  415 

§  415.  Its  Effect. — It  follows  from  this  explanation  of 
the  principle  that  when  several  successive  and  conflicting 
claims  upon  or  interests  in  the  same  subject-matter  are 
wholly  equitable,  and  neither  is  accompanied  by  the  legal 
estate,  which  is  held  by  some  third  person,  and  neither  pos- 
sesses any  special  feature  or  incident  which  would,  accord- 
ing to  the  settled  doctrines  of  equity,  give  it  a  precedence 
over  the  others  wholly  irrespective  of  the  order  of  time, — • 
under  these  circumstances  the  principle  applies,  and  prior- 
ity of  claim  is  determined  by  priority  of  time.^  ^     There  are, 

more.  The  subsequent  grantee  takes  only  that  which  is  left  in  the  grantor. 
Hence  grantees  and  encumbrancers  claiming  in  equity  take  and  are  ranked 
according  to  the  dates  of  their  securities;  and  the  maxim  applies,  Qui 
prior  est  tempore,  potior  est  jure.  The  first  gi'antee  is  potior;  that  is, 
potentior.  He  has  a  better  and  superior — because  a  prior — equity.  The 
first  grantee  has  a  right  to  be  paid  first,  and  it  is  quite  immaterial  whether 
the  subsequent  encumbrancers,  at  the  time  when  they  took  their  securities 
and  paid  their  money,  had  notice  of  the  first  encumbrance  or  not."  See, 
also,  Cory  v.  Eyre,  1  De  Gex,  J.  &  S.  149,  167,  per  Turner,  L.  J.;  Newton 
V.  Newton,  L.  R.  6  Eq.  135,  140,  341,  per  Lord  Romilly,  M.  R. 

§  415,  1  Brace  v.  Duchess  of  Marlborough,  2  P.  Wms.  491 ;  Beckett  v. 
Cordley,  1  Brown  Ch.  353,  358;  Mackreth  v.  Symmons,  15  Ves.  354; 
Loveridge  v.  Cooper,  3  Russ.  30 ;  Peto  v.  Hammond,  30  Beav.  495 ;  Cory  v. 
Eyi-e,  1  De  Gex,  J.  &  S.  149 ;  Case  v.  James,  3  De  Gex,  F.  &  J.  256 ;  New- 
ton V.  Newton,  L.  R.  6  Eq.  135 ;  Fitzsimmons  v.  Ogden,  7  Cranch,  2 ;  Berry 
V.  Mutual  Ins.  Co.,  2  Johns.  Ch.  603;  Muir  v.  Schenck,  3  Hill,  228,  38 
Am.  Dec.  633;  Cherry  v.  Monro,  2  Barb.  Ch.  618;  Van  Meter  v.  McFaddin, 
8  B.  Mon.  435;  Rexford  v.  Rexford,  7  Lans.  6;  Rowan  v.  State  Bank,  45 
Vt.  160;  Rooney  v.  Soule,  45  Vt.  303;  Tharpe  v.  Dunlap,  4  Heisk.  674. 
One  or  two  simple  illustrations  of  this  principle  may  be  proper.  If  a 
creditor,  B,  holding  a  thing  in  action  due  from  A,  should  assign  the  same, 
for  a  valuable  consideration  paid  by  each,  to  successive  assignees,  neither 
of  whom  notified  the  debtor,  A,  nor  the  other  assignees,  as  long  as  such 
thing  in  action  remained  unpaid,  the  first  assignee,  as  between  himself 
and  the  debtor,  A,  on  the  one  side,  and  the  subsequent  assignees  on  the 
other,  would  be  entitled  to  compel  payment  by  reason  of  his  priority,  since 
the  equities  of  all  the  assignees,  irrespective  of  time,  would  be  equal. 
But  if,  Defore  receivmg  notice  of  any  prior  assignment,  the  debtor.  A, 
should  be  notified  of  a  subsequent  assignment,  and  should  pay  the  claim 

§  415,  (a)  The  text  is  quoted  in  Campbell  v.  Sidwell,  61  Ohio  St.  179, 
Hurst  V.  Hurst  (Ky.),  76  S.  W.  325;     '55  N.  E.  609. 


§  415  EQUITY    JURISPRUDENCE.  780 

however,  many  features  and  incidents  of  equitable  interests 
which  prevent  the  operation  of  this  rule,  and  which  give  a 
subsequent  equity  the  precedence  over  a  prior  one,  as  will 
be  fully  shown  in  the  next  chapter.  The  principle  embodied 
in  this  maxim  lies  at  the  foundation  of  the  important  doc- 
trines concerning  priorities,  notice,  and  the  rights  of  pur- 
chasers in  good  faith  and  for  a  valuable  consideration, 
which  so  largely  affect  the  administration  of  equity  juris- 
prudence in  England,  though  to  a  less  extent  in  the  United 
States,  and  which  are  discussed  in  the  following  chapter.^ 

to  that  assignee,  the  one  thus  paid  would  thereby  obtain  a  precedence,  since, 
in  addition  to  his  equitable  claim,  he  would  have  obtained  the  legal  title. 
Again,  since  in  a  very  large  number  of  the  states  the  interest  of  a  mort- 
gagee of  lands  is  purely  equitable,  unaccompanied  by  any  legal  estate,  if 
in  those  states  an  owner  of  land,  A,  should  give  successive  mortgages  upon 
it,  each  for  a  valuable  consideration,  such  mortgages  would  be  entitled  to 
a  priority  in  the  order  of  time,  had  not  the  statutes  concerning  recording 
interfered  with  the  operation  of  this  doctrine,  and  enabled  a  subsequent 
mortgagee  to  obtain  a  preference  by  means  of  the  record.  The  doctrine 
would  still  prevail  if  all  the  mortgages  should  be  unrecorded.  Other  illus- 
trations might  be  given,  but  these  will  sutfice.  It  is  plain  that  in  this 
country  the  statutory  system  of  recording  has  greatly  interfered  with  the 
application  of  the  jjrinciple  in  cases  where  it  would  operate,  in  England, 
to  determine  the  rights  of  the  parties. 

§  415,  (b)  The  text  is  quoted  in  against  the  grantee,  lien  C  that  of 
Campbell  v.  Sidwell,  61  Ohio  St.  179,  B's  bona  fide  mortgagee.  The  court 
55  N.  E.  609.  In  this  interesting  held  that  the  maxim  should  be  con- 
case  it  was  urged-  that  the  maxim  fined  to  cases  where  the  liens  are 
should  be  applied  in  a  certain  class  equitable  and  are  equal  in  all  re- 
ef cases  where,  though  the  equities  speets  save  time;  and,  the  property 
are  admittedly  unequal,  the  usual  being  insufficient  to  pay  the  mort- 
rules  of  priority  cannot  be  applied  gage  in  full,  ordered  sufficient  of  the 
without  an  apparent  absurdity;  viz.,  proceeds  paid  to  discharge  the  jiidg- 
where  lien  A  is  superior  to  lien  B,  ment,  and  the  rest  applied  upon  the 
lien  B  is  superior  to  lien  C,  but  lien  mortgage.  The  second  lien  was 
C  is  superior  to  lien  A — a  situation  thus  given  a  priority  which  it  would 
by  no  means  uncommon.  In  the  par-  not  have  had  save  for  the  existence 
ticular  case,  lien  A  was  a  grantor's  of  the  third  lien, 
lien,    lien    B  that    of    a    judgment 


781     WHERE  EQUAL.  EQUITY,  THE  LAW  MUST  PBEVAH.,    §§  41G,  417 

SECTION  vn. 

WHERE  THERE  IS  EQUAL  EQUITY,  THE  LAW  MUST  PREVAIL. 

ANALYSIS. 

§  416.     Its  application, 

§  417.     Its  meaning  and  effects. 

§  416.  Its  Application. — This  maxim  and  the  one  ex- 
amined in  the  last  preceding  section  must  be  taken  in  con- 
nection, in  order  to  constitute  the  enunciation  of  a  complete 
principle.  The  first  applies  to  a  certain  condition  of  facts ; 
the  other  supplements  its  operation  by  applying  to  addi- 
tional facts  by  which  equitable  rights  and  duties  may  be 
affected.  The  two  are  in  fact  counterparts  of  each  other, 
and  taken  together,  they  form  the  source  of  the  doctrines, 
in  their  entire  scope,  concerning  priorities,  notice,  and  pur- 
chasers for  a  valuable  consideration  and  without  notice. 
Any  full  examination  of  these  two  maxims,  and  explanation 
of  their  effects,  would,  of  necessity,  be  a  complete  discussion 
of  those  doctrines,  and  will,  therefore,  not  be  attempted  at 
present,  but  will  be  postponed  to  a  subsequent  chapter.^ 

§  417.  Its  Meaning  and  Effects. — The  meaning  of  the 
maxim  is,  if  two  persons  have  equal  equitable  claims  upon 
or  interests  in  the  same  subject-matter,  or  in  other  words, 
if  each  is  equally  entitled  to  the  protection  and  aid  of  a 
court  of  equity  with  respect  of  his  equitable  interest,  and 
one  of  them,  in  addition  to  his  equity,  also  obtains  the  legal 
estate  in  the  subject-matter,  then  he  who  thus  has  the  legal 
estate  will  prevail.  This  precedence  of  the  legal  estate 
might  be  worked  out  by  the  court  of  equity  refusing  to  inter- 
fere at  all,  and  thereby  leaving  the  parties  to  conduct  their 
controversy  in  a  court  of  law,  where  of  course  the  legal 
estate  alone  would  be  recognized.^     One  of  the  most  fre- 

§  416,  1  See  the  next  chapter,  sections  on  "priorities"  and  "notice." 
§417,  1  Thorndike  v.  Hunt,  3  De  Gex  &  J.  563,  570,  571;  Caldwell  v. 

Ball,  1  Term  Rep.  214;  Fitzsimmons  v.  Ogden,  7  Craneh,  2,  18;  Newton  y. 

McLean,  41  Barb.  285.    Thorndike  v.  Hunt,  3  De  Gex  &  J.  563,  570,  571, 


§  417  EQUITY    JURISPRUDENCE.  782 

quent  and  important  consequences  and  applications  of  this 
principle  is  the  doctrine,  that  when  a  purchaser  of  prop- 
erty for  a  valuable  consideration,  and  without  notice  of  a 
prior  equitable  right  to  or  interest  in  the  same  subject- 
matter,  obtains  the  legal  estate  in  addition  to  his  equitable 
claim,  he  becomes,  in  general,  entitled  to  a  priority  both  in 
equity  and  at  law.2  a 

is  a  very  instructive  case,  illustrating  this  principle;  the  facts  were  as 
follows :  A  certain  person,  H.,  was  trustee  of  two  entirely  distinct  trusts, — 
one  in  favor  of  Thorndike,  the  other  in  favor  of  Browne.  In  a  suit 
brought  by  the  cestui  que  trust,  T.,  in  one  of  these  trusts,  the  trustee  was 
ordered  to  transfer  naoneys,  the  proceeds  of  certain  trust  property  in  his 
hands,  into  court.  The  transfer  was  made  by  him,  the  money  was  paid 
into  court  and  deposited  to  the  credit  of  T.'s  suit,  and  was  treated  as 
belonging  to  T.'s  estate.  By  operation  of  the  statute,  the  legal  estate  in 
such  money  thereby  became  vested  in  the  accountant-general,  an  officer  of 
the  court,  for  the  purposes  of  the  suit.  It  subsequently  was  discovered 
that  the  trustee,  H.,  had  provided  himself  with  money,  for  the  purpose  of 
complying  with  the  order  of  the  court,  by  fraudulently  misappropriating 
certain  funds  which  he  held  under  the  other  trust  in  favor  of  B.  On  dis- 
covery of  this  fact,  B.  brought  a  second  suit  for  the  purpose  of  reaching 
such  moneys;  and  the  only  question  was,  whether  B.  could  reach  the  money 
which  had  thus  been  paid  into  court.  The  court  held  that  he  could  not, 
because,  the  equities  of  T.  and  of  B.  being  otherwise  equal,  T.  had  ob- 
tained the  benefit  of  the  legal  title  on  his  side.  The  reasons  given  for  the 
decision  were  as  follows:  that  T.  had  no  notice  of  the  trustee's  want  of 
right  and  title  to  the  money  which  he  paid  into  court ;  that  the  transfer  was 
for  a  valuable  consideration,  because  there  was  a  debt  due  from  the  trustee 
for  which  he  would  have  been  liable  by  execution  upon  his  own  property, 
or  otherwise,  and  therefore  B.'s  equity  to  follow  the  money  was  no  higher 
than  T.'s  right  to  retain  it,  and  the  fact  that  the  legal  title  was  held  for 
T.  by  the  accountant-general  was  sufficient  to  create  a  preference  in  T.'s 
favor. 

§  417,  2  Basset  v.  Nosworthy,  Cas.  t.  Finch,  102,  2  Lead.  Cas.  Eq.  1, 
and  notes;  Le  Neve  v.  Le  Neve,  Amb.  436,  2  Lead.  Cas.  Eq.,  4th  Am.  ed., 

§417,      (a)      This     paragraph      is  able  consideration  essential  element 

quoted     in    Conn    v.    Boutwell,     101  of    bona    fide    purchase) ;     Economy 

Miss.  353,  58  South.  105.     The  text  Sav.  Bank  v.  Gordon,  90  Md.  486,  48 

is   cited   in   Tate   v.    Security   Trust  L.  E.  A.   63,  45  Atl.   176   (bona  fide 

Co.   (N.  J.  Eq.),  52  Atl.  313   (valu-  assignee  of  mortgage  protected). 


783  EQUITY   AIDS    THE    VIGILANT.  §  418 


SECTION  VIII. 

EQUITY  AIDS   THE   VIGILANT,   NOT   THOSE   WHO    SLUMBER 
ON  THEIR  RIGHTS. 

ANALYSIS. 

§  418.     Its  meaning;  is  a  rule  controlling  the  administration  of  remedies. 
§  419.     Its  application  and  effects. 

§  418.  Its  Meaning;  Is  a  Rule  Controlling  the  Admin- 
istration of  Remedies. — The  principle  embodied  in  this 
maxim,  the  original  form  of  which  is,  Vigilantibus  non  dor- 
mientibus  cequitas  suhvenit,  operates  throughout  the  entire 
remedial  portion  of  equity  jurisprudence,*'  but  rather  as 
furnishing  a  most  important  rule  controlling  and  restrain- 
ing the  courts  in  the  administration  of  all  kinds  of  reliefs, 
than  as  being  the  source  of  any  particular  and  distinctive 
doctrines  of  the  jurisprudence.  Indeed,  in  some  of  its 
applications  it  may  properly  be  regarded  as  a  special  form 
of  the  yet  more  general  principle,  He  who  seeks  equity  must 
do  equity.  1     The  principle  thus  used  as  a  practical  rule  coii- 

109,  and  notes;  Phillips  v.  Phillips,  4  De  Gex,  F.  &  J.  208;  Pilcher  v.  Raw- 
lins, L.  R.  7  Ch.  259;  Jen-ard  v.  Saunders,  2  Ves.  454;  Wallwyn  v.  Lee, 
9  Ves.  24;  Payne  v.  Compton,  2  Younge  &  C.  457;  Wood  v.  Mann,  1  Sum. 
507;  McNeil  v.  Magee,  5  Mason,  269;  Vattier  v.  Hinde,  7  Pet.  252;  Boone 
V.  Chiles,  10  Pet.  177;  Rexford  v.  Rexford,  7  Lans.  6;  Rowan  v.  State 
Bank,  45  Vt.  160. 

§  418,  1  Thus  in  applications  to  restrain  by  injunction  acts  authorized 
by  statute,  on  the  ground  that  they  would  constitute  a  nuisance,  and  in  all 
other  similar  applications,  the  rule  is  well  settled  that  the  plaintiff  must 
use  diligence  in  seeking  his  remedy,  and  a  comparatively  short  delay  may 
be  laches  sufficient  to  defeat  his  remedial  right.  With  reference  to  this 
example  of  the  maxim  it  was  said  in  Great  Western  R'y  v.  Oxford,  etc., 
R'y,  3  De  Gex,  M.  &  G.  341,  359,  per  Turner,  L.  J. :  "The  jurisdiction  to 
interfere  is  purely  equitable,  and  it  must  be  governed  by  equitable  prin- 
ciples.    One  of  the  first  of  those  principles  is,  that  parties  coming  into 

§418,  (a)  The  text  is  quoted  in  Riley  v.  Blacker,  51  Mont.  364,  152 
Pae.  758. 


§  418  EQUITY   JURISPRUDENCE.  784 

trolling  and  restricting  the  award  of  reliefs  is  designed  to 
promote  diligence  on  the  part  of  suitors,  to  discourage 
laches  by  making  it  a  bar  to  relief,  and  to  prevent  the  en- 
forcement of  stale  demands  of  all  kinds,  wholly  independent 
of  any  statutory  periods  of  limitation.  It  is  invoked  for 
this  purpose  in  suits  for  injunction,  suits  to  obtain  remedy 
against  fraud,  and  in  all  classes  of  cases,  except  perhaps 
those  brought  to  enforce  a  trust  against  an  express  trus- 
tee.2  b 

equity  must  do  equity;  and  this  principle  more  than  reaches  to  cases  of 
this  description.  If  parties  cannot  come  into  equity  without  submitting 
to  do  equity,  a  fortiori  they  cannot  come  for  the  summary  interference 
of  the  court  when  their  conduct  before  coming  has  been  such  as  to  pre- 
vent equity  being  done."  And  see  Buxton  v.  James,  5  De  Gex  &  S.  80, 
84;  Coles  v.  Sims,  Kay,  56,  70,  5  De  Gex,  M.  &  G.  1;  Gordon  v.  Chelten- 
ham R'y,  5  Beav.  229,  237;  Fuller  v.  Melrose,  1  Allen,  166;  Tash  v. 
Adams,  10  Cush.  252. 

§  418,  2  Great  Western  R'y  v.  Oxford,  etc.,  R'y,  3  De  Gex,  M.  &  G. 
341;  Attorney-General  v.  Sheffield  Gas  Co.,  3  De  Gex,  M.  &  G.  304; 
Derhishire  v.  Home,  3  De  Gex,  M.  &  G.  80;  Wright  v.  Vanderplank,  8 
De  Gex,  M.  &  G.  133;  Coles  v.  Sims,  5  De  Gex,  M.  &  G.  1;  Kay,  56,  70; 
Graham  v.  Birkenhead,  etc.,  R'y,  2  Macn.  &  G.  146;  Buxton  v.  James,  5 
De  Gex  &  S.  80;  Cooper  v.  Hubbuck,  30  Beav.  160;  Gordon  v.  Chelten- 
ham R'y,  5  Beav.  229,  237;  Attorney-General  v.  Eastlake,  11  Hare,  205, 
228;  Rockdale  Canal  Co.  v.  King,  2  Sim.,  N.  S.,  78;  Wood  v.  Sutcliffe, 
2  Sim.;  N.  S.,  163;  Senior  v.  Pawson,  L.  R.  3  Eq.  330;  Attorney-General 
V.  Lunatic  Asylum,  L.  R.  4  Ch.  146;  Bankart  v.  Houghton,  27  Beav.  425, 
428;  Odlin  v.  Gove,  41  N.  H.  465,  77  Am.  Dec.  773;  Bassett  v.  Salisbury 
Mfg.  Co.,  47  N.  H.  426,  439;  Peabody  v.  Flint,  6  Allen,  52;  Fuller  v. 
Melrose,  1  Allen,  166;  Tash  v.  Adams,  10  Cush.  252;  Briggs  v.  Smith, 
5  R.  I.  213;  Grey  v.  Ohio  &  Penn.  R.  R.,  1  Grant  Cas.  412;  Little  v. 
Price,  1  Md.  Ch.  182;  Binney's  Case,  2  Bland,  99;  Burden  v.  Stein,  27 
Ala.  104,  62  Am.  Dec.  758 ;  Pillow  v.  Thompson,  20  Tex.  206 ;  Borland  v. 
Thornton,  12  Cal.  440;  Phelps  v.  Peabody,  7  Cal.  50. 

§  418,    (b)   The  text  is  quoted  in  Jackson   v.    Lynch,    129    IH.   72,    21 

Hobart'  Tp.   v.    Town    of   Miller,   54  N.   E.   580,   22   N.   E.   246;    Citizens' 

Tnd.  App.  151,  102  N.  E.  847;  French  Nat.  Bank  of  Utica  v.  Judy,  146  Ind. 

V.  Eaymond,  83  Vt.  265,  75  Atl.  267.  322,  43  N.  E.  259;  Eames  v.  Manley 

The   text   is   cited  in   Citizens'   Sav-  (Mich.),  80  N.  W.  15;  McKechnie  v. 

ings  &  Trust  Co.  v.  Belleville  &  S.  I.  McKechnie,   39   N.   Y.    Supp.   402,   3 

E.  Co.,  157  Fed.  73,  84  C.  C.  A.  577;  App.    Div.    91;    Hensel    v.    Kegans 


785  EQUITY    AIDS    THE    VIGILANT.  §  41 1) 

§  419.  Its  Application  and  Effects. — The  scope  and  effect 
of  the  general  principle  as  a  rule  for  the  administration  of 
reliefs  irrespective  of  any  statutory  limitations  was  stated 
by  an  eminent  English  chancellor  in  the  following  language : 
"A  court  of  equity,  which  is  never  active  in  relief  against 
conscience  or  public  convenience,  has  always  refused  its  aid 
to  stale  demands,  where  the  party  has  slept  upon  his  rights, 
and  acquiesced  for  a  great  length  of  time.  Nothing  can 
call  forth  this  court  into  activity  but  conscience,  good  faith, 
and  reasonable  diligence.''^ '^^  The  principle  has  in  fact 
two  aspects,  one  of  them  wholly  independent  of  any  statu- 
tory limitation,  and  the  other  with  reference  to  such  statute. 
In  the  earlier  forms  of  the  statute  of  limitations,  the  pro- 
visions were,  in  express  tenns,  confined  to  actions  at  law; 
and  yet  courts  of  equity,  proceeding  upon  the  analogy  of 
these  enactments  in  most  suits  to  enforce  equitable  titles 
to  real  estate  and  equitable  personal  claims,  applied  the 
statutory  periods. 2  ^    In  certain  kinds  of  suits,  however, 

§419,  iPer  Lord  Camden  in  Smith  v.  Clay,  3  Brown  Ch.  638;  and 
see  also  Lacon  v.  Briggs,  3  Atk.  105  (suit  by  an  executor  to  recover  a 
debt  due  his  testator,  after  seventeen  years'  delay,  dismissed) ;  Ellison  v. 
Moffatt,  1  Johns.  Ch.  46  (suit  for  an  account  of  transactions  ended 
twenty-six  years  before  the  bill  was  filed  dismissed) ;  Phillips  v.  Prevost, 
4  Johns.  Ch.  205  (bill  by  executor  of  a  judgment  creditor  to  enforce  a 
judgment  recovered  more  than  thirty-six  years  before,  against  the  repre- 
sentatives of  the  debtor  thirty  years  after  his  death,  dismissed) ;  Gei-man- 
toAvn,  etc.,  Co.  v.  Filter,  60  Pa.  St.  124,  133,  100  Am.  Dec.  546 ;  Preston 
V.  Preston,  95  U.  S.  200;  Neely's  Appeal,  85  Pa.  St.  387;  Johnson  v. 
Diversey,  82  111.  446;  Colwell  v.  Miles,  2  Del.  Ch.  110;  Pasehall  v.  Hin- 
derer,  28  Ohio  St.  568 ;  Barnes  v.  Taylor,  27  N.  J.  Eq.  259 ;  In  re  Butler, 
2  Hughes,  247;  King  v.  Wilder,  75  111.  275;  Hathaway  v.  Noble,  55 
N.  H.  508. 

§  419,  2  Hull  V.  Russell,  3  Saw.  506 ;  Blanchard  v.  Williamson,  70  111. 
647;  and  see  cases  cited  in  the  two  preceding  notes. 

(Tex.  Civ.  App.),  28  S.  W.  705.     The  St.  Rep.  81,  30  South.  34;  Hensel  v. 

subject  of  laches  is  treated  more  at  Kogans   (Tex.   Civ.  App.),  28   S.   W. 

length  in  Pom.  Equit.  Eemedies,  In-  705. 

troductory  Chapter.  §419,    (b)    The   text   is   quoted  in 

§419,    (a)    The    text    is    cited    in  Moore  v.  Moore  (Ga.),  30  S.  E.  535. 

Haney  v.  Legg,  129  Ala.  C19,  87  Am.  The  text  is  cited  in  Burrus  t.  Cook, 
1—50 


§  420  EQUITY    JURISPBUDENCB.  786 

especially  those  brought  against  trustees  to  enforce  express 
trusts,  the  analogy  of  the  statute  was  not  followed. ^  <^  The 
modern  forms  of  these  statutes,  in  the  American  states,  gen- 
erally declare,  in  express  terms,  that  the  periods  of  limita- 
tion shall  apply  to  all  equitable  suits  as  well  as  to  legal 
actions.  This  legislation  has  not,  however,  abrogated  the 
principle  under  consideration;  all  cases  not  falling  within 
the  scope  of  the  statutory  limitations  would  still  be  con- 
trolled by  it. 

SECTION  IX. 

EQUITY    IMPUTES    AN    INTENTION    TO    FULFILL    AN 
OBLIGATION. 

ANALYSIS. 

§  420.  It's  meaning  and  application. 

§§  421,422.  Is  the  source  of  certain  equitable  doctrines. 

§  421.  Performance  of  covenants. 

§  422.  Trust  resulting  from  acts  of  a  trustee. 

§420.  Its  Meaning  ajid  Application. — This  principle  is 
the  statement  of  a  general  presumption  upon  which  a  court 
of  equity  acts.  It  means  that  wherever  a  duty  rests  upon  an 
individual,  in  the  absence  of  all  evidence  to  the  contrary,  it 
shall  be  presumed  that  he  intended  to  do  right,  rather  than 
wrong;  to  act  conscientiously,  rather  than  with  bad  faith; 
to  perform  his  duty,  rather  than  to  violate  it.  The  prin- 
ciple is  applied  in  those  cases  where  a  court  of  equity  is 
called  upon  to  determine  whether  an  equitable  estate  or 
interest  in  certain  subject-matter  belongs  to  A,  in  pur- 
suance of  an  obligation  which  rested  upon  B,  although  B, 
in  acquiring  the  subject-matter,  has  not  expressed  or  indi- 
cated in  any  manner  an  intention  on  his  part  of  performing 

§  419,  3  Colwell  V.  Miles,  2  Del.  Ch.  110. 

117  Mo.  App.  385,  93  S.  W.  888,  dis-  effect    in   Hutcheson    v.    Grubbs,    80 

seating  opinion;    Tracy  v.   Wheeler,  Va.  251;  Zeigler  v.  Zeigler,  180  Ala. 

15  N.  D.  248,  6  L.  E.  A.  (N.  S.)  516,  246,    60    South.    810;     Whetsler    v. 

107  N.  W.  68,  dissenting  opinion.  Sprague,  224  111.  461,  79  N.  E.  667. 
§  419,  (c)  The  text  is  cited  to  this 


787  IMPUTES   INTENTION    TO    FULFILL    OBLIGATION.  §  421 

such  obligation;  that  is,  he  did  not  acquire  the  subject- 
matter  for  the  avowed  purpose  of  fulfilling  his  duty.  Not- 
withstanding the  absence  of  such  avowed  intention,  a  court 
of  equity  may  proceed  upon  the  presumption  that  B  did 
intend  to  perform  his  duty ;  may  hold  that  the  subject-matter 
was  acquired  with  that  design,  and  that  in  consequence  of 
such  purpose  an  equitable  estate  in  it  belongs  to  A. 

§  421.  Is  the  Source  of  Certain  Equitable  Doctrines:  Per- 
formance of  Covenants. — One  important  application  of  the 
principle  is  in  connection  with  the  performance  of  express 
covenants.  The  general  rule  has  therefore  been  settled, 
that  where  a  person  covenants  to  do  an  act,  and  he  after- 
wards does  something  which  is  capable  of  being  considered 
either  a  total  or  partial  performance  of  that  act,  he  will  be 
presumed  to  have  done  it  with  the  intention  of  performing 
the  covenant,  although,  of  course,  no  such  intention  was  ex- 
pressed. In  the  leading  case  which  illustrates  this  rule  a 
person  in  marriage  articles  covenanted  to  purchase  lands 
of  the  annual  value  of  two  hundred  pounds,  and  to  settle 
them  upon  his  wife  for  her  life,  and  then  upon  his  first- 
born son  in  tail,  etc.  He  purchased  lands  of  greater  value, 
but  made  no  settlement  of  them,  and  on  his  death  they  de- 
scended to  his  eldest  son  as  heir  at  law.  This  son  then 
brought  suit  against  his  father's  representatives,  to  compel 
other  lands  to  the  value  of  two  hundred  pounds  per  annum 
to  be  purchased  with  the  personal  property  of  the  estate, 
and  to  be  settled  upon  him  in  pursuance  of  the  covenant. 
It  was  held,  however,  that  the  lands  which  were  purchased 
by  the  father,  and  suffered  to  descend  to  the  son,  should 
be  regarded  as  a  satisfaction  of  the  covenant;  that  a  court 
of  equity  would  act  upon  the  presumption  that  the  purchase 
was  made  by  the  father  with  the  intent  of  performing  the 
duty  laid  upon  him  by  his  covenant.^  » 

§  421,  1  Wilcocks  v.  Wileocks,  2  Vem.  558,  2  Lead.  Cas.  Eq.,  4th  Am. 
ed.,  833.     This  rule  is  applied  in  the  same  manner  where  a  person  having 

§421,   (a)   See  §§578  et  seq. 


§  422  EQUITY    JURISPRUDENCE.  788 

§  422.  Trust  Resulting  from  Acts  of  a  Trustee. — Another 
and  far  more  important  application  of  the  principle  that 
equity  imputes  an  intention  to  fulfill  an  obligation  is  seen  in 
4he  following  well-settled  rule  concerning  the  creation  of  a 
resulting  trust,  under  certain  circumstances,  by  the  acts  of 
the  trustee  or  other  person  standing  in  fiduciary  relations : 
Whenever  a  trustee  or  other  person  in  a  fiduciary  position, 
acting  apparently  within  the  scope  of  his  powers, — that  is, 
having  authority,  by  virtue  of  his  trust  or  other  fiduciary 
relation,  to  do  what  he  does  do, — purchases  land  or  personal 
property  with  trust  funds,  or  funds  in  his  hands  impressed 
with  the  fiduciary  character,  and  takes  the  title  to  such  prop- 
erty in  his  own  name,  without  any  declaration  of  a  trust, 
a  trust  with  respect  to  such  property  at  once  results  in  favor 
of  the  original  cestui  que  trust  or  other  beneficiary;  the 
purchaser  becomes  with  respect  to  such  property  a  trustee.* 
Equity  regards  such  a  purchase  as  made  in  trust  for  the 
person  beneficially  interested,  independently  of  any  impu- 
tation of  fraud  or  fraudulent  design,  because  it  assumes 
that  the  purchaser  intended  to  act,  and  was  acting,  in  pur- 
suance of  his  fiduciary  duty,  and  not  in  violation  thereof. 
This  doctrine  is  one  of  wide  operation,  and  is  used  by  courts 
of  equity  with  great  efficiency  in  maintaining  and  protecting 
the  beneficial  rights  of  property.  It  has  been  applied  to 
trustees  proper,  to  executors,  and  administrators,  directors 
and  managers  of  corporations,  guardians  of  infant  wards, 

no  real  estate  covenants  to  convey  and  settle,  and  he  afterwards  pur- 
chases, but  does  not  convey  nor  settle,  the  purchase  will  be  presumed 
made  with  the  intent  to  fulfill,  and  the  lands  thus  purchased  will  be 
treated  as  subject  to  the  covenant,  and  dealt  with  so  as  to  carry  it  into 
effect:  Deacon  v.  Smith,  3  Atk.  323;  Wellesley  v.  Wellesley,  4  Mylne  & 
C.  581.  Where  the  lands  thus  purchased  are  of  less  value  than  those 
covenanted  to  be  purchased  or  to  be  conveyed  and  settled,  they  will  be 
considered  as  purchased  in  part  performance  of  the  covenant :  Leehmere 
v.  Earl  of  Carlisle,  3  P.  Wms.  211;  Leehmere  v.  Leehmere,  Cas.  t.  Talb. 
80;  Snowden  v.  Snowden,  1  Brown  Ch.  582,  3  P.  Wms.  228,  note. 

§422,  (a)  The  text  is  quoted  in  Morris  v.  Smith,  51  Tex.  Civ.  App.  357, 
112  S.  W.  130. 


789  IMPUTES   INTENTION    TO    FULFILL    OBLIGATION.  §  422 

guardians  or  committees  of  lunatics,  agents  using  moneys 
of  their  principals,  partners  using  partnership  funds,  hus- 
bands purchasing  property  with  funds  belonging  to  the 
separate  estate  of  their  wives,  and  to  all  persons  who  stand 
in  fiduciary  relations  towards  others.^  ^  In  order  that  this 
rule  may  apply,  however,  it  must  be  made  to  appear  with 
reasonable  certainty  that  trust  or  other  fiduciary  funds 
were  actually  used  in  making  the  purchase.  A  court  of 
equity,  in  order  to  raise  a  resulting  trust,  will  not  assume, 
from  the  mere  fact  that  the  purchaser  had  or  might  have 
had  trust  moneys  in  his  hands,  that  he  used  them  in  paying 
for  the  property  purchased,  in  the  absence  of  evidence 
clearly  showing  such  use  by  him.2  c 

§422,  1  As  applied  to  trustees:  Deg  v.  Deg,  2  P.  "Wms.  414;  Lane  v. 
Dighton,  Amb.  409;  Peiry  v.  Phelips,  4  Ves.  107,  17  Ves.  173;  Schlarfer 
V.  Corson,  32  Barb.  510;  Ferris  v.  Van  Veehten,  73  N.  Y.  113;  McLaren 
V.  Brewer,  51  Me.  402;  Hancock  v.  Titus,  33  Miss.  224.  Tv  executors 
and  administrators:  White  v.  Drew,  42  Me.  561;  Stow  v.  Kimball,  28  111. 
93;  Barker  v.  Barker,  14  Wis.  131.  To  directors  or  managers  of  corpo- 
rations: Church  V.  Sterling,  16  Conn.  388.  To  guardians:  Johnson  v. 
Dougherty,  4  N.  J.  Eq.  406;  Bancroft  v.  Cousen,  13  Allen,  50.  To  com- 
mittees of  lunatics:  Reid  v.  Fitch,  11  Barb.  399.  To  agents:  Robb's  Ap- 
peal, 41  Pa.  St,  45;  Bridenbacker  v.  Lowell,  32  Barb.  10.  To  partners: 
Smith  V.  Burnham,  3  Sum.  435;  Oliver  v.  Piatt,  3  How.  401;  Homer  v. 
Homer,  107  Mass.  85;  Settembre  v.  Putnam,  30  Cal.  490;  Jenkins  v. 
Frink,  30  Cal.  586,  89  Am.  Dec.  134. 

§  422,  2  Ferris  v.  Van  Veehten,  73  N.  Y.  113.  This  is  a  very  in- 
structive decision,  admitting  the  doctrine  as  well  settled,  but  showing  the 
necessity  of  proof  clearly  showing  the  appropriation  of  the  fiduciary 
funds. 

§  422,  (b)   See  §§  587,  1049.     This  §  422,  (c)  The  text  is  cited  to  the 

paragraph   is    cited    in    Whitney    v.       effect  that  if  an  agent  to  purchase 

Dewey,  158  Fed.  385,  86  C.  C.  A.  21       ^^^  ^^^^  ^'^  °^^  ™°°«y'  *>^«  P"°- 

cipal  advancing  no  part  of  the  price, 
(partnership  real  estate  is  held  in       ^^^^^  .^  ^^  resulting  trust:  Dongan 

trust  for  the  firm).  v.  Bemis,  95  Minn.  220,  5  Ann.  Cas. 

253,  103  N.  W.  882. 


§  §  423,  424  EQUITY   JURISPRUDENCE.  790 

SECTION  X. 
EQUITY  WILL  NOT  SUFFER  A  WRONG  WITHOUT  A  REMEDY. 

ANALYSIS. 

§  423.     Its  general  meaning  and  effects. 
§  424.     Limitations  upon  it. 

§  423.  Its  General  Meaning". — This  principle,  wliicli  is 
the  somewhat  restricted  application  to  the  equity  juris- 
prudence of  the  more  comprehensive  legal  maxim,  Ubi  jus 
ihi  remedium, — wherever  a  legal  right  has  been  infringed, 
a  remedy  will  be  given, — is  the  source  of  the  entire  equi- 
table jurisdiction,  exclusive,  concurrent,  and  auxiliary.  A 
full  treatment  of  it,  including  an  explanation  of  its  scope 
and  meaning,  with  its  various  applications  and  illustra- 
tions, would  simply  be  a  restatement  of  all  the  doctrines 
and  rules  concerning  jurisdiction  which  have  already  been 
discussed  in  the  first  part  of  this  work.  No  such  unneces- 
sary repetition  will  be  attempted.  It  is  enough  that  the 
principle  finds  its  development  in  the  whole  body  of  doc- 
trines and  rules  which  define  and  regulate  the  equitable 
jurisdiction  as  distinguished  from  the  jurisdiction  at  law. 

§  424.  Its  Limitations. — There  are,  however,  certain  im- 
portant limitations  upon  the  generality  of  the  maxim  which 
may  properly  be  stated  here,  although  they  have  all  been 
referred  to  in  the  Introductory  Chapter,  where  the  nature 
of  equity  is  described,  or  in  the  chapters  of  Part  First, 
where  the  doctrines  concerning  the  exclusive  and  concurrent 
jurisdiction  are  explained.  The  first  of  these  limitations  is, 
that  equity  cannot  interfere  to  give  any  remedy,  unless  the 
right  in  question,  the  invasion  of  which  constitutes  the 
wrong  complained  of,  is  one  which  comes  within  the  scope 
of  juridical  action,  of  juridical  events,  rights,  and  duties. 
The  right  must  belong  to  the  purview  of  the  municipal  law, 
— ^must  be  one  which  the  municipal  law,  through  some  of  its 
departments,  recognizes,  maintains,  and  protects.     Equity 


791  WILL    NOT    SUFFER    WRONG    WITHOUT    REMEDY.  §  424 

does  not  attempt,  any  more  than  the  law,  to  deal  with  obli- 
gations and  corresponding  rights  which  are  purely  moral, 
which  properly  and  exclusively  belong  to  the  tribunal  of 
conscience.!  *  The  second  limitation  is,  that  equity  does 
not  interfere  to  remedy  any  wrong  where  the  right  and  the 

§  424,  1  It  is  upon  this  ground  that  where  a  right,  undoubtedly  belong- 
ing to  the  domain  of  the  municipal  law,  is  strictly  legal,  equity  will  not 
interfere  merely  because,  under  the  particular  circumstances  of  any  case 
every  legal  means  and  instrument  of  obtaining  relief  has  been  tried  and 
exhausted  without  avail.  It  is  plain  that  if  equity  should  interfere  in 
any  such  case,  it  could  only  be  on  the  ground  that  the  party  had  a  moral 
right;  that  he  was  morally  entitled  to  redress;  because  on  the  assumption, 
the  right,  being  strictly  legal,  comes  within  no  recognized  head  of  the 
equitable  jurisdiction,  and  the  only  possible  reason  for  interference  by  a 
court  of  equity  would  be  that,  the  legal  remedies  proving  absolutely  fruit- 
less, and  the  party  having  no  other  means  of  redress,  he  has  a  claim  upon 
a  court  of  equity  based  upon  the  intrinsic  righteousness  of  his  demand. 
To  such  a  purely  moral  claim  equity  does  not  and  cannot  respond.  See 
Finnegan  v.  Fernandina,  15  Fla.  379,  21  Am.  Rep.  292;  Rees  v.  City  of 
Watertown,  19  Wall.  121 ;  Heine  v.  Levee  Com'rs,  19  Wall.  658.  In  Rees 
V.  Watertown,  19  Wall.  121,  a  holder  of  bonds  issued  by  the  city  alleged 
in  his  bill  that  he  had  obtained  judgment  thereon  against  the  city,  and 
had  also  obtained  a  writ  of  mandamus  to  compel  the  city  officers  to  raise 
and  apply  funds  to  satisfy  the  judgment,  but  had  wholly  failed  of  obtain- 
ing any  redress.  He  prayed  that  the  taxable  property  of  the  citizens, 
which  he  claimed  was  a  fund  for  the  payment  of  municipal  debts,  might 
be  subjected  to  the  payment  of  his  judgment,  and  that  the  marshal  might 
be  empowered  to  seize  and  sell  so  much  of  such  property  as  should  be 
necessary  for  that  purpose.  The  court  refused  relief  on  the  ground  that 
the  demand  was  wholly  a  legal  one,  and  that  the  proper  remedy  was  by 
mandamus,  and  the  mere  fact  that  the  mandamus  had  failed  under  the 
particular  circumstances  of  this  case  did  not  give  a  court  of  equity  any 
jurisdiction.  The  court  said  a  court  of  equity  "cannot  assume  control 
over  that  large  class  of  obligations  called  imperfect  obligations,  resting 
upon  conscience  and  moral  duty  only,  unconnected  with  legal  obligations." 
The  decisions  in  the  other  cases  above  cited  are  to  the  same  effect.** 

§424,    (a)    This   paragraph   of  the  Ct.  140;  Preston  v.  Chicago,  St.  L.  & 

text  is  cited  in  Harrigan  v.  Gilchrist  N.  0.  R.  Co.,  175  Fed.  487;  affirmed, 

(Wis.),  99  N.  W.  909,  933.  183  Fed.  20,  105  C.  C.  A.  312;  Pres- 

§  424,   (l»)  See,  also,  the  analogous  ton  v.  Sturgis  Milling  Co.,  183  Fed. 

cases:    Thompson    v.    Allen    County,  1,  32  L.  R.  A.   (N.  S.)    1020,  105  C. 

115  U.  S.  550,  29  L.  Ed.  472,  6  Sup.  C.  A.  293,  and  cases  cited. 


§  424  EQUITY    JURISPKUDENCB.  792 

remedy,  assuming  that  the  right  falls  within  the  purview  of 
the  municipal  law,  both  completely  belong  to  the  domain  of 
the  law.  In  order  that  the  principle  may  apply,  one  of 
three  facts  must  exist,  viz.,  either, — 1.  The  right  itself  must 
be  one  not  recognized  as  existing  by  the  law ;  or  2.  The  right 
existing  at  the  law,  the  remedy  must  be  one  which  the  law 
cannot  or  does  not  administer  at  all ;  or  3.  The  right  exist- 
ing at  the  law,  and  the  remedy  being  one  which  the  law  gives, 
the  remedy  as  administered  by  the  law  must  be  inadequate, 
incomplete,  or  uncertain.  Of  these  three  alternatives,  the 
first  and  second  denote  the  exclusive  jurisdiction  of  equity ; 
the  third,  the  concurrent  jurisdiction.  The  third  limitation 
upon  the  principle  is,  that  it  does  not  apply  where  a  party, 
whose  case  would  otherwise  come  within  one  of  the  three 
alternatives  above  mentioned,  has  destroyed  or  lost  or 
waived  his  right  to  an  equitable  remedy  by  his  own  act  or 
laches.  With  these  limitations  upon  its  operation,  the  prin- 
ciple has  been  developed  into  the  vast  range  of  the  equi- 
table jurisdiction,  which,  considered  in  its  entirety,  gives, — • 
1.  Legal  remedies  for  the  violation  of  legal  rights  in  a  more 
certain,  complete,  and  adequate  manner  than  the  law  can 
give ;  2.  Equitable  remedies  for  the  violation  of  legal  rights, 
which  the  law  has  no  power  to  give  with  its  means  of  pro- 
cedure f  and  3.  Remedies,  either  equitable  or  legal  in  their 
nature  or  form,  for  the  violation  of  rights  of  which  the  law 
takes  no  cognizance, — rights  which  the  law  does  not  recog- 
nize as  existing,  and  which  it  either  cannot  or  does  not 
protect  and  maintain. 

§424,  (c)  It  has  been  laid  down,  this  class .  of  cases;  see  Gavin  v. 
as  a  principle  of  jurisdiction,  that  Curtin,  171  111.  640,  40  L.  S.  A.  776, 
equity  will  always  give  a  remedy  in       49  N.  E.  523. 


793  EQUITY   FOLLOWS   THE   LAW.  §  425 

SECTION  XL 
EQUITY  FOLLOWS   THE  LAW. 

ANALYSIS. 

§§  425,  426.     Twofold  meaning  of  the  principle. 

§425.  First,  in  obeying  the  law:  Heard  v.  Stamford,  per  Lord  Chan- 
cellor Talbot. 

I  426.  Second,  in  applying  certain  legal  rules  to  equitable  estates :  Cow- 
per  V.  Cowper,  per  Sir  J.  Jckyll,  M.  R. 

§  427.     Operates  within  very  narrow  limits. 

§  425.  Twofold  Meaning — First.  In  Obeying  the  Law.a 
This  maxim  in  its  Latin  form,  Z^quitas  sequitur  legem, 
was  frequently  quoted  by  the  earlier  chancellors  before 
the  extent  of  the  equitable  jurisdiction  had  been  fully  de- 
termined, and  an  importance,  even  a  supreme  and  con- 
trolling efficacy,  has  been  attributed  to  it  by  some  writers 
which  it  does  not  and  never  did  possess.  So  far  as  it  can 
truly  be  called  a  general  principle,  guiding  and  regulating 
the  action  of  equity  .courts,  its  meaning  and  effect  are  now 
settled  within  well-defined  and  narrow  limits.  As  a  prac- 
tical rule,  and  not  a  mere  verbal  theory,  it  is  wholly  re- 
strictive in  its  operation,  and  its  only  object  is  to  keep  the 
jurisdiction  of  equity  from  overstepping  the  boundaries 
which  have  been  established  by  the  prior  course  of  adjudi- 
cation. With  this  respect  the  maxim  has  a  double  import 
and  operation:  First.  Equity  follows  the  law,  in  the  sense 
of  obeying  it,  conforming  to  its  general  rules  and  policy, 
whether  contained  in  the  common  or  in  the  statute  law. 
This  meaning  of  the  principle  was  very  clearly  stated  by 
Lord  Chancellor  Talbot  in  the  following  passage:  ^' There 
are  instances,  indeed,  in  which  a  court  of  equity  gives  a 
remedy,  where  the  law  gives  none;  but  where  a  particular 
remedy  is  given  by  the  law,  and  that  remedy  bounded  and 
circumscribed  by  particular  rules,  it  would  be  very  improper 

§  425,  (a)  Sections  425-427  are  cited  in  Eowloy  v.  Shepardson,  90  Vt. 
25,   96  Atl.   374. 


§  426  EQUITY    JURISPRUDENCB.  794 

for  this  court  to  take  it  up  where  the  law  leaves  it,  and  to 
•extend  it  further  than  the  law  allows."!^  It  should  be 
observed,  however,  that  equity  had  not,  in  developing  its 
jurisdiction,  invaded  the  particular  doctrine  of  the  common 
law  which  was  involved  in  this  case;  but  it  had  certainly 
disregarded  other  rules  as  positive  and  well  settled,  in  its 
previous  course  of  decision. 

§  425,  1  Heard  v.  Stamford,  Cas.  t.  Talb.  173.  In  this  ease  the  chan- 
cellor was  asked  to  disregard  a  well-settled  doctrine  of  the  common  law. 
By  the  then  existing  law,  if  a  man  married  he  at  once  became  personally 
liable  for  all  his  wife's  antenuptial  debts;  but  this  liability  ceased  upon 
the  wife's  death.  If  the  creditor  had  not  recovered  judgment  at  the  time 
the  wife  died  he  was  remediless,  no  matter  how  large  a  fortune  the  wife 
may  have  brought  to  and  left  with  her  husband.  This  rule  was  grossly 
vmjust  in  both  of  its  branches.  Defendant's  wife  was  indebted  at  the 
time  of  the  marriage,  and  brought  her  husband  a  large  fortune,  but  died 
soon  after.  One  of  her  creditors  brought  this  suit  against  the  husband, 
urging  that  he  should  be  held  liable  in  equity,  under  the  circumstances. 
The  chancellor  held  that  he  was  not  liable,  and  refused  to  decree  against 
a  settled  rule  of  the  law. 

§  426.  Secondly.  In  Applying  Legal  Rules  to  Equitable 
Estates. — Equity  follows  the  law  in  the  sense  of  applying 

§  425,  (b)  This  paragraph  is  cited  Eambo   v.  First  State   Bank   of  Ar- 

in   support   of   the   rule   that   equity  gentine,   88   Kan.   257,   128  Pac.   182 

does   not   try   title    to   land   or   per-  (where     legislature     has     prescribed 

sonal    property    where    the    parties  rules  of  law  which  govern  rights  of 

claim   by  distinct  titles,  in  Jenkins  parties,   equity,  equally   with   courts 

V.  Jenkins,  83  S.  C.  537,  65  S.  E.  736.  of  law,  is  bound,  and  cannot  disre- 

See  Henderson  v.  Hall,  134  Ala.  455,  gard     such     provisions);     Scott     v. 

32    South,    840;    Davis    v.    Williams,  Waynesburg    Brewing    Co.,   256   Pa. 

130  Ala.  530,  89  Am.  St.  Rep.  55,  54  158,  100  Atl.  591  (the  existence,  va- 

L.  R.  A.  749,  30  South.  488;   Game-  lidity  and  extent  of  a  judgment  lien 

well  Fire  Alarm  Tel,  Co.  v.  City  of  are  matters  purely  legal,  dependent 

Laporte    (C.    C.    A.),    102   Fed.    417.  upon  statute).     When  a  contract  is 

See,    also,    Adams    v.    Murphy,    165  void   at  law  for  want  of   power  to 

Fed.  304,  91  C.  C.  A.  272   (plaintiff  make   it,   a   court   of   equity   has   no 

attempted  to  evade  the  rule  against  jurisdiction  to  enforce  such  contract, 

suing  an  Indian  tribe   by   suing  its  or  in  the  absence  of  fraud,  accident, 

chief;   held,  that  if  the  law   out   of  or   mistake    to    so    modify    it    as    to 

considerations    of    public    policy    de-  make  it  legal,  and  then  enforce  it: 

nies  a  remedy,  equity  will  follow  the  Hedges  v.  Dixon  County,  150  U.  S. 

law     and     refuse     to     grant     one) ;  182,  14  Sup.  Ct.  71. 


795  EQUITY    FOLLOWS    THE    LAW.  §  426 

to  equitable  estates  and  interests  some  of  the  same  rules 
by  which  at  common  law  legal  estates  and  interests  of  a 
similar  kind  are  governed.  Equity,  having  by  the  exer- 
cise of  its  creative  power  called  into  existence  the  system 
of  equitable  estates,  determined  that  these  estates  should 
partake,  to  a  certain  extent,  of  the  quality  of  the  correspond- 
ing legal  estates.  Thus  a  use  in  fee  was  held  to  descend 
according  to  the  same  rules  as  a  legal  estate  in  fee,  and 
the  husband  was  entitled  to  curtesy  in  such  a  use.  It 
should  be  carefully  observed,  however,  that  courts  of  equity 
carried  out  the  principle  in  this  its  second  sense  only  to 
a  partial  and  quite  limited  extent.  A  careful  examination 
will  show,  I  think,  that  the  only  important  rules  of  law 
adopted  by  the  early  chancellors  to  regulate  equitable 
estates  were  tliose  concerning  descent  and  inheritance.^ 
The  feudal  incidents  of  legal  estates  were  held  not  to  apply 
to  uses;  equitable  estates  in  fee  could  be  conveyed  without 
livery  of  seisin,  and  could  be  devised  by  will,  and  were 
not  subject  to  dower.  It  is  an  evident  error  to  say  that 
equitable  estates  were  regulated  by  all  the  rules  of  the 
law  applicable  to  the  corresponding  legal  estates.  This 
second  sense  in  which  the  principle  is  understood  was  admir- 
ably stated  in  a  celebrated  opinion  of  Sir  Joseph  Jekyll,  of 
which  the  following  is  the  important  passage:  ''The  law 
is  clear,  and  courts  of  equity  ought  to  follow  it  in  their 
judgments  concerning  titles  to  equitable  estates ;  otherwise 
great  uncertainty  and  confusion  would  ensue.  And  though 
proceedings  in  equity  are  said  to  be  secundum  discretionem 
boni  viri,  yet  when  it  is  asked,  Vir  bonus  est  quisf  the  an- 
swer is.  Qui  consulta  patrum,  qui  leges  juraque  servat.  And 
it  is  said  in  Rooke's  Case^  that  discretion  is  a  science  not 

§  426,  1  The  early  chancellors,  in  dealing  with  uses  and  other  equitable 
estates,  plainly  shrank  from  interfering  with  the  legal  rules  of  descent 
and  inheritance,  which  were  so  dear  to  the  landed  proprietors.  Yet  they 
held  that  equitable  estates  in  fee  were  not  subject  to  dower,  although 
they  were  to  curtesy;  perhaps  this  distinction  was  not  displeasing  to  the 
body  of  land-owners. 

§  426,  2  Rooke's  Case,  5  Coke,  99b. 


§  427  EQUITY    JURISPRUDENCE.  796 

to  act  arUtrarily  according  to  men's  wills  and  private  affec- 
tions, so  the  discretion  which  is  executed  here  is  to  be  gov- 
erned by  the  rules  of  law  and  equity,  which  are  not  to 
oppose,  but  each  in  its  turn  to  be  subservient  to,  the  other. 
This  discretion,  in  some  cases,  follows  the  law  implicitly ;  in 
others,  assists  it  and  advances  the  remedy ;  in  others  again, 
it  relieves  against  the  abuse,  or  allays  the  rigor  of  it;  but 
in  no  case  does  it  contradict  or  overturn  the  grounds  or 
principles  thereof,  as  has  been  sometimes  ignorantly  im- 
puted to  this  court.  That  is  a  discretionary  power,  which 
neither  this  nor  any  other  court,  not  even  the  highest,  act- 
ing in  a  judicial  capacity,  is  by  the  constitution  intrusted 
with.  "3  Some  of  the  sentences  of  this  often  quoted  pas- 
sage must,  I  think,  be  accepted  only  with  considerable  modi- 
fication. Taken  literally,  they  certainly  contradict  a  large 
portion  of  the  established  equitable  jurisdiction,  and  of  the 
settled  doctrines  of  the  equity  jurisprudence.  The  same 
twofold  import  of  the  principle  has  also  been  expressed 
in  the  following  formulas:  1.  Equity  is  governed  by  the 
rules  of  the  law  as  to  legal  estates,  interests,  and  rights. 
2.  Equity  is  regulated  by  the  analogy  of  such  legal  inter- 
ests and  rights,  and  the  rules  of  the  law  affecting  the  same, 
in  regard  to  equitable  estates,  interests,  and  rights,  where 
any  such  analogy  clearly  subsists  A  * 

§  427.  Operates  Within  Very  Narrow  Limits.  —  The 
maxim  is,  in  truth,  operative  only  within  a  very  narrow 
range;  to  raise  it  to  the  position  of  a  general  principle 
would  be  a  palpable  error.  Throughout  the  great  mass  of 
its  jurisprudence,  equity,  instead  of  following  the  law,  either 

§  426,  3  Cowper  v.  Cowper,  2  P.  "Wms.  720,  752.  In  this  case  the  court 
reluctantly  adhered  to  the  legal  canon  of  descent  which  prefers  the  whole 
to  the  half-blood,  and  held  that  an  equitable  estate  in  fee  descended  to 
a  cousin  of  the  whole  blood,  instead  of  to  a  brother  of  the  half-blood  of 
the  deceased  owner. 

§  426,  4  Snell's  Equity,  14. 

§426,  (a)  This  paragraph  is  cited  86  Atl.  932  (equity  follows  the  law 
in  Birch  v.  Baker,  81  N.  J.  Eq.  264,       in  construction  of  statutes). 


797  EQUITY    ACTS    IN    PERSONAM,    AND    NOT    IN    REM.       §  428 

ignores  or  openly  disregards  and  opposes  the  law.  As  was 
shown  in  that  portion  of  the  Introductory  Chapter  whicli 
deals  with  the  nature  of  equity,  one  large  division  of  the 
equity  jurisprudence  lies  completely  outside  of  the  law;  it 
is  additional  to  the  law ;  and  while  it  leaves  the  law  concern- 
ing the  same  subject-matter  in  full  force  and  efficacy,  its 
doctrines  and  rules  are  constructed  without  any  reference 
to  the  corresponding  doctrines  and  rules  of  the  law.  An- 
other division  of  equity  jurisprudence  is  directly  opposed 
to  the  law  which  applies  to  the  same  subject-matter;  its 
doctrines  and  rules  are  so  contrary  to  those  of  the  law,  that 
when  they  are  put  into  operation  the  analogous  legal  doc- 
trines and  rules  are  displaced  and  nullified.  As  these  con- 
clusions cannot  be  questioned,  it  is  plain  that  the  maxim, 
Equity  follows  the  law,  is  very  partial  and  limited  in  its 
application,  and  cannot,  like  all  the  other  maxims  discussed 
in  this  chapter,  be  regarded  as  a  general  principle. 


SECTION  xn. 

EQUITY  ACTS  IN  PERSONAM,  AND  NOT  IN  REM. 

ANALYSIS. 

S  428.     Origin  and  original  meaning  of  this  principle. 
§  429.     In  what  sense  equitable  remedies  do  operate  in  rem. 
§§430,431.     The  principle  that  courts  of  equity  act  upon  the  conscience  of  a 
party  explained. 
§  431.     The  same,  per  Lord  Westbury. 

§  428.  Origin  and  Original  Meaning.* — I  have  already 
had  occasion,  while  describing  the  nature  of  equity  and  of 
equitable  remedies  in  a  former  chapter,  to  explain  the  origin 
of  this  maxim,  and  the  leading  conception  which  it  origi- 
nally embodied.     In  the  infancy  of  the  court  of  chancery, 

§428,  (a)  Sections  428  et  seq.  are  706.  Section  428  is  cited  in  Orfield 
cited  in  Warfield-Pratt-Howell  Co.  v.  v.  Harney,  33  N.  D.  568,  157  N.  W. 
Williamson,    233    III.    487,    84    N.   E.       124. 


§  428  EQUITY    JURISPRUDENCE.  798 

while  the  chancellors  were  developing  their  system  in  the 
face  of  a  strong  opposition,  in  order  to  avoid  a  direct  col- 
lision with  the  law  and  with  the  judgments  of  law  courts, 
they  adopted  the  principle  that  their  own  remedies  and  de- 
cree should  operate  in  personam  upon  defendants,  and  not 
in  rem.  The  meaning  of  this  simply  is,  that  a  decree  of  a 
court  of  equity  while  declaring  the  equitable  estate,  interest, 
or  right  of  the  plaintiff  to  exist,  did  not  operate  by  its  own 
intrinsic  force  to  vest  the  plaintiff  with  the  legal  estate, 
interest,  or  right  to  which  he  was  pronounced  entitled;  it 
was  not  itself  a  legal  title,  nor  could  it  either  directly  or 
indirectly  transfer  the  title  from  the  defendant  to  the  plain- 
titf.  A  decree  of  chancery  spoke  in  terms  of  personal 
command  to  the  defendant,  but  its  directions  could  only  be 
carried  into  effect  by  his  personal  act.  It  declared,  for 
example,  that  the  plaintiff  was  equitable  owner  of  certain 
land,  the  legal  title  of  which  was  held  by  the  defendant, 
and  ordered  the  defendant  to  execute  a  conveyance  of  the 
estate;  his  own  voluntary  act  was  necessary  to  carry  the 
decree  into  execution;  if  he  refused  to  convey,  the  court 
could  endeavor  to  compel  his  obedience  by  fine  and  impris- 
onment. The  decree  never  stood  as  a  title  in  the  place  of 
an  actual  conveyance  by  the  defendant;  nor  was  it  ever 
carried  into  effect  by  any  officer  acting  in  the  defendant's 
name.  It  has  also  been  shown  that  this  original  character 
of  equitable  remedies  and  decrees  has  been  greatly  modified 
by  statute  in  the  United  States.  Under  this  legislation 
'decrees  are  made  to  operate  of  themselves,  wherever  neces- 
sary, as  a  sufficient  title ;  they  either  transfer  the  estate  by 
their  own  force,  without  any  actual  conveyance  from  the 
defendant,  or  they  are  carried  into  execution  by  officers  pur- 
porting to  act  in  the  defendant's  name  and  stead.  Side  by 
side  with  this  most  important  statutory  change,  the  original 
personal  character  of  the  remedies  is  still  left  wherever  the 
alteration  would  be  impossible,  as,  for  example,  wherever 
a  decree  simply  restrains  the  defendant  from  doing  any 
specified  act,  and  wherever  the  jurisdiction  is  exercised  with 


799      EQUITY  ACTS  IN  PERSONAM,  AND  NOT  IN  REM.      §§  429,  430 

reference  to  a  subject-matter  situated  beyond  the  territorial 
cognizance  of  the  court^  ^ 

§  429.  In  What  Sense  Equitable  Remedies  do  Operate  in 
Rem. — It  has  also  been  shown,  when  explaining  the  nature 
of  equitable  remedies,  that  they  generally  are,  in  another 
special  sense,  essentially  in  rem,  and  not  in  personam. 
Equitable  remedies  very  seldom  consist  of  personal  judg- 
ments, general  recoveries  payable  out  of  the  defendant's 
assets.  The  fundamental  theory  of  the  remedial  action  of 
equity  is,  that  it  deals  with  specific  and  identified  land  or 
chattels,  or  specific  funds,  whether  consisting  of  securities 
and  other  things  in  action  or  of  money,  and  it  seeks  to  de- 
termine, declare,  and  maintain  the  estates,  interests,  and 
rights  of  the  litigant  parties  in  and  to  such  identified  lands, 
chattels,  or  funds.^ 

§  430.  Operation  of  Equity  upon  the  Conscience  of  a 
Party. — There  is  still  a  third  aspect  of  the  remedial  action 
of  equity  which  should  be  accurately  understood,  since  it 
lies  at  the  foundation  of  much  of  the  dealing  of  the  court 
of  chancery  with  the  legal  estates  and  rights,  and  especially 
those  conferred  by  the  positive  provisions  of  statutes.  I 
mean  the  most  important  principle,  that  equity  acts  upon 
the  conscience  of  a  party,  imposing  upon  him  a  personal 
obligation  of  treating  his  property  in  a  manner  very  dif- 
ferent from  that  which  accompanies  and  is  permitted  by 
his  mere  legal  title.  Whenever  a  legal  estate  is,  by  virtue 
of  some  positive  rule  of  either  the  common  or  statute  law, 

§  428,  1  See  Penn  v.  Lord  Baltimore,  1  Ves.  Sr.  444,  2  Lead.  Cas.  Eq., 
4th  Am.  ed.,  1806,  and  notes. 

§  428,    (b)    Subject-matter  beyond  with  reference  to  its  etfect  upon  the 

jurisdiction:  Schmaltz  v.  York  Mfg.  different    kinds    of    equitable    reme- 

Co.,  204  Pa.  St.  1,  93  Am.  St.  Rep.  dies,    see    post,    §§  1317,    1318,    and 

782,  53  Atl.  522  (citing  and  discuss-  Pom.  Eq.  Rem. 

ing  many  authorities  on  this  point).  §429,     (a)     Cited    in    Sharon     v. 

For   a   more   detailed  exposition    of  Tucker,  144  U.  S.  542,  12  Sup.  Ct. 

the  doctrine  that  equity  acts  in  per-  720. 
sonam^    and    not    in  rem,  especially 


§  430  EQUITY    JURISPKUDENCB.  800 

vested  in  A,  but  this  legal  estate  in  A  is  of  itself  a  violation 
of  some  settled  equitable  doctrines  and  rules,  so  that  B  is 
equitably  entitled  to  the  property  or  to  some  interest  in  or 
claim  upon  it,  equity  grants  its  relief,  and  secures  to  B  his 
right,  not  by  denying,  or  disregarding,  or  annulling,  or  set- 
ting aside  A's  legal  estate,  but  by  admitting  its  existence, 
by  recognizing  it  as  wholly  vested  in  A,  and  then  by  work- 
ing upon  A's  conscience,  and  imposing  upon  him  the  duty 
of  holding  and  using  his  legal  title  for  B's  benefit,  so  that,  in 
the  ordinary  language  of  the  courts,  he  is  treated  as  a  trus- 
tee for  B.  One  or  two  familiar  examples  will  illustrate  the 
working  of  this  fundamental  principle.  A  testator  has 
given  certain  lands  to  A  by  a  will  properly  executed ;  but  A 
procured  the  devise  by  wrongful  representations  made  to 
the  testator,  and  the  lands  should,  by  the  doctrines  of  equity, 
belong  to  B.  The  statute  of  wills,  however,  is  peremptory 
in  its  prescribed  mode  of  executing  a  will ;  there  can  be  no 
will  without  conforming  to  the  statutory  requirements. 
Equity  does  not  attempt  to  overrule  the  statute;  it  admits 
the  validity  of  the  will,  and  the  legal  title  vested  in  A,  but 
on  account  of  A's  wrongful  conduct  in  procuring  the  devise 
to  himself,  it  says  that  he  cannot  conscientiously  hold  and 
enjoy  that  legal  title  for  his  own  benefit,  and  imposes  upon 
his  conscience  the  obligation  to  hold  the  land  for  B  's  benefit, 
as  the  equitable  owner  thereof ;  and  then  arises  the  further 
obligation  upon  his  conscience  to  perfect  and  complete  B's 
equitable  ownership  by  a  conveyance.^  In  exactly  the  same 
manner  the  equity  of  a  party  is  worked  out  in  all  those 
cases  where  the  peremptory  provisions  of  the  statute  of 
frauds  stand  in  the  way  of  any  legal  right  or  claim,  as  in 
the  specific  enforcement  of  a  verbal  contract  for  the  sale 
of  land,  which  has  been  part  performed  by  the  plaintiff. 
Another  illustration  of  the  principle  may  be  seen  in  the  doc- 
trine established  by  courts  of  equity  concerning  the  effect 
of  the  registry  or  recording  acts.     These  statutes  declare,  in 

§430,    (a)    See  post,   §§919,   1054.       N.  C.  198,  18  Ann.  Cas.  802,  65  S.  E. 
The   first  half   of  this   paragraph   is       902,  concurring  opinion. 
quoted    in    Sumner    v.    Staton,    151 


801  EQUITY    ACTS    IN    PEESONAM,    AND    NOT    IN    REM.       §  431 

general  terms,  and  without  any  exception,  that  a  subsequent 
grantee  or  mortgagee  who  first  puts  his  deed  or  mortgage 
uj^on  record  shall  thereby  acquire  the  precedence  over  a 
prior  unrecorded  conveyance.  Courts  of  equity  have  added 
the  rule  that  if  the  subsequent  party,  who  thus  obtains  the 
legal  benefit  of  a  record,  has  notice,  his  recorded  instrument 
shall  still  be  subordinate  to  the  prior  unrecorded  convey- 
ance of  which  he  was  charged  with  notice.  In  giving  tliis 
effect  to  a  notice,  the  courts  of  equity  do  not  assume  to 
nullify  the  provisions  of  the  recording  act ;  they  admit  that 
a  subsequent  grantee  has,  by  means  of  his  record,  obtained 
the  complete  legal  title,  which  cannot  be  directly  set  aside 
nor  disturbed ;  but  they  say  that  the  notice  of  the  prior  con- 
veyance makes  it  unconscientious  for  him  to  hold  and  enjoy 
that  legal  title  for  his  own  benefit,  and  they  impose  upon 
his  conscience  the  obligation  of  holding  it  for  the  benefit  of 
the  prior  unrecorded  grantee.^ 

§  431.  This  principle  which  I  have  attempted  to  explain 
and  illustrate  in  the  preceding  paragraph,  and  which  under- 
lies a  very  large  part  of  the  remedial  action  of  equity,  was 
stated  with  his  usual  clearness  and  accuracy  by  Lord  West- 
bury  in  the  following  passage:  "The  court  of  equity  has^ 
from  a  very  early  period,  decided  that  even  an  act  of  Par- 
liament shall  not  be  used  as  an  instrument  of  fraud;  and 
if  in  the  machinery  of  perpetrating  a  fraud  an  act  of  Par- 
liament intervenes,  the  court  of  equity,  it  is  true,  does  not 
set  aside  the  act  of  Parliament,  but  it  fastens  on  the  indi- 
vidual who  gets  a  title  under  that  act,  and  imposes  upon  him 
a  personal  obligation,  because  he  applies  the  act  as  an  in- 
strument for  accomplishing  a  fraud.  In  this  way  the  court 
of  equity  has  dealt  with  the  statute  of  wills  and  the  statute 
of  frauds."  1  ^     Although  Lord  Westbury  here  speaks  only 

§  431,  1  McCortniek  v.  Grogan,  L.  R.  4  H.  L.  82,  97.  This  case  was 
concerning  a  devise  which  had  been  obtained  by  fraud. 

§430,  (b)   See  §§659-665.  Sumner  v.  Staton,  151  N.  C.  inS.  IS 

§431,    (a)    The   text   is   quoted   in       Ann.  Cas.  802,  65  S.  E.  902,  concur- 
1—51 


§  431  EQUITY    JURISPRUDENCE.  802 

of  a  case  where  the  equitable  rights  of  one  person  arise 
from  the  fraud  of  another  who  has  thereby  obtained  the 
legal  estate,  yet  the  principle  applies,  whatever  be  the 
grounds  and  occasion  of  the  equitable  interests  and  claims 
which  are  asserted  in  opposition  to  the  one  having  the  legal 
title.2  b 

§  431,  2  In  the  very  recent  case  of  Greaves  v.  Tofield,  L.  R.  14  Ch.  Div. 
563,  577,  which  arose  upon  the  effect  of  a  recording  act,  and  of  actual 
notice  to  a  subsequent  encumbrancer  who  obtained  the  first  registry,  Bram- 
well,  L.  J.,  stated  the  principle  as  follows:  "I  understand  the  authori- 
ties to  have  established  this  beyond  dispute,  that  if  a  man  having  an 
estate  agi'ees  to  sell  it,  or  undertakes  to  grant  an  interest  in  it,  or  a  charge 
upon  it,  for  a  valuable  consideration,  and  afterwards,  disregarding  the 
bargain  he  has  made,  conveys  to  a  third  person,  or  so  deals  with  it  by 
bargain  with  a  third  person  that  he  is  incompetent  to  convey  the  estate 
or  grant  the  interest  to  the  first  which  he  had  agreed  to  do,  and  the  third 
person  has  all  along  had  notice  of  the  first  contract,  the  conscience  of  the 
second  purchaser  is  affected,  and  he  cannot  retain  the  estate  without  giv- 
ing the  person  who  entered  into  the  first  contract  that  right  in  it  for 
which  he  had  stipulated,  and  if  necessary,  he  must  join  in  a  conveyance 
of  the  estate,  if  the  first  person  was  a  purchaser,  or  he  must  join  in 
executing  a  charge,  if  it  was  a  charge  that  was  to  be  executed,  or  a  lease, 
if  it  was  a  lease  to  be  granted.     I  understand  the  authorities  further  to 

ring  opinion.  This  paragraph  i3  attacked  on  the  ground  that  the  de- 
cited  in  Wirtz  v.  Guthrie,  81  N.  J.  cree  was  obtained  by  fraud.  "The 
Eq.  271,  87  Atl.  134  (equity  will  de-  fact  that  a  statute  does  not  ex- 
prive  a  defendant  of  the  protection  pressly  provide  that  fraud  shall  in- 
of  the  statute  of  frauds  where  such  validate  acts  authorized  to  be  done 
protection  would  allow  him  to  per-  under  it  does  not  deprive  the  courts 
petrate  a  fraud).  of  the  general  power  to  protect  the 
§  431,  (b)  The  text  is  quoted  in  rights  of  parties.  The  principles 
Sumner  v.  Staton,  151  N.  C.  198,  18  which  are  recognized  and  enforced 
Ann.  Cas.  802,  65  S.  E.  902,  concur-  in  courts  of  equity  underlie  our  en- 
ring  opinion.  See,  also,  in  support  tire  system  of  jurisprudence.  They 
of  the  general  principle  of  the  text  are  no  more  excluded  by  the  failure 
the  interesting  ease,  Baart  v.  Mar-  to  insert  an  exception  in  the  statute 
tin,  99  Minn.  197,  116  Am.  St.  Rep.  than  by  the  failure  of  parties  to  in- 
394,  108  N.  W.  945,  holding  that  a  sert  a  similar  exception  in  a  private 
decree  of  registration  under  the  contract.  .  .  .  When  necessary  to 
Minnesota  Torrens  law,  which,  un-  prevent  a  fraud,  a  court  of  equity 
der  the  terms  of  the  statute,  vested  will  read  an  exception  into  a  statute 
in  the  registered  owner  an  abso-  which  is  expressed  in  general  terms" 
lutely    indefeasible    title,    could    be  (Elliott,  J.). 


803  EQUITY   ACTS   IN   PEKSONAM,   AND    NOT    IN    REM.       §  431 

establish  this,  that  that  principle  is  not  affected  by  those  acts  of  Parlia- 
ment which  require  registration  in  order  to  give  or  to  prevent  a  priority, 
but  that  the  conscience  of  the  second  purchaser,  as  I  have  called  him,  is 
equally  affected,  and  that  the  intention  of  the  legislature  in  such  acts  as 
those  I  have  referred  to  was  to  afford  a  protection  to  persons  whose  con- 
sciences were  not  affected,  and  not  to  give  the  second  purchaser  whose 
conscience  was  affected  an  opportunity  of  joining  in  the  commission  of 
that  which  was  a  breach  of  contract  and  a  wrong  to  the  first  person  who 
made  the  bargain."  This  is  a  clear  statement  of  the  principle,  and  one 
would  have  supposed  that  the  very  statement  would  have  carried  convic- 
tion of  its  essential  justice.  But  the  observations  added  by  Mr.  Justice 
Bramwell,  in  which  he  expresses  a  strong  dissent  from  this  principle, 
and  condemns  other  familiar  principles  of  equity  which  have  been  so  long 
and  so  firmly  established  that  they  may  be  regarded  as  the  foimdations 
of  its  jurisprudence,  show  very  clearly  the  danger  to  be  apprehended 
from  associating  purely  law  judges  in  the  administration  of  equity.  His 
criticisms  are  trivial,  and  his  reasoning  is  weak,  but  even  such  criticism 
and  reasoning  coming  from  the  bench  may,  in  time,  undermine  the  whole 
system  of  equity.  The  danger  was  pointed  out  at  the  time  when  the 
judicature  act  was  passed  in  England;  it  has  been  realized  in  some  of  the 
states  of  our  own  country,  where  equity  and  law  have  been  combined, 
in  which,  beyond  a  doubt,  equity,  as  a  system,  is  being  supplanted  by 
the  law  as  administered  from  the  bench.® 

§  431,  (c)    The  author's    obserra-      lish  case,  In  re  Monolithic  Building 
tions  apply  with  equal  force  to  much       Co.,  [1915]  1  Ch.  643, 
of  the  reasoning  in  the  similar  Eng- 


EQUITY    JURISPKUDENCE.  804 


CHAPTER  11. 

CERTAIN  DISTINCTIVE  DOCTRINES  OF  EQUITY 
JURISPRUDENCE. 


SECTION  I. 
CONCERNING  PENALTIES  AND  FORFEITURES. 


§  432.     Questions  stated. 
§§433-447.     Penalties;  equitable  relief  against. 

§  433.     General  ground  and  mode  of  interference, 
§  434.     Form  of  relief ;  when  given  at  law, 
§§  435,  436.     What  are  penalties. 

§  436.     To  secure  the  payment  of  money  alone. 
§§  437-445.     Stipulations  not  penalties. 

§  437.     .Stipulations  in  the  alternative. 

§  438.     Ditto,  for  the  reduction  of  an  existing  debt  upon  prompt  payment. 
§  439.     Ditto,  for  accelerating  payment  of  an  existing  debt. 
§§  440-445.     Ditto,  for  "liquidated  damages." 

§  440.     "Liquidated   damages"   described  in   general. 
§§  441-445.     Rules  determining  between  liquidated  damages  and  penalties. 
§  441.     1.  Payment  of  a  smaller  sum  secured  by  a  larger. 
§  442.     2.  Agreement  for  the  performance  or  non-performance  of  a  single 

act. 
§  443.     3.  Agreement  for  the  performance  or  non-performance  of  several 

acts  of  different  degrees  of  importance. 
§  444.     4.  The  party  liable  in  the  same  amount  for  a  partial  and  for  a 

complete  default. 
§  445.     5.  Stipulation  to  pay  a  fixed  sum  on  default  in  one  of  several 

acts. 
§  446.     Specific  performance  of  a  contract  enforced,  although  a  penalty 
is  attached;  party  cannot  elect  to  pay  the  penalty  and  not  per- 
form. 
§  447.     Otherwise  as  to  stipulation  for  liquidated  damages. 
§§  448-460.     Of  forfeitures. 

§§  449-458.     "When  equity  will  relieve  against  forfeitures. 
§  450.     General  ground  and  extent  of  such  relief. 
§  451,     Relief  when  forfeiture  is  occasioned  by  accident,  fraud,  mistake, 

surprise,  or  ignorance. 
§  452.     No  relief  when  forfeiture  is  occasioned  by  negligence,  or  is  willful. 


805         CONCEKNING    PENALTIES   AND    FORFEITURES.       §§432,433 

§§  453,  454.  Belief  against  forfeitures  arising  from  covenants  in  leases, 

§  455.  Ditto,  from  contracts  for  the  sale  of  lands. 

§  456.  Ditto,  from  other  special  contracts. 

§  457.  Ditto,  of  shares  of  stock  for  non-payment  of  calls. 

§  458.  Ditto,  when   created  by  statute. 

§§459,460.  Equity  will  not  enforce  a  forfeiture. 

§  432.  Questions  Stated.-'^ — In  this  chapter  I  purpose  to 
discuss  certain  peculiarly  equitable  doctrines  which,  to  a 
greater  or  less  extent,  run  through  and  atfect  the  entire 
system  of  equity  jurisiH'udence.  As  neither  of  them  is  con- 
fined in  its  operation  to  any  single  equitable  estate  or  in- 
terest, nor  to  any  one  equitable  remedy,  it  seems  expedient, 
in  order  to  avoid  unnecessary  repetitions,  that  they  should 
be  treated  of  in  a  preliminary  division  by  themselves. 
Each  of  them  may  be,  and  is,  applied  to  several  different 
equitable  estates  or  interests,  and  may  be  carried  into  effect 
by  means  of  several  different  equitable  remedies ;  and  they 
may  all,  therefore,  be  considered  as  general,  although  not 
perhaps  universal.  Furthermore,  all  these  doctrines  are 
distinctively  equitable  in  their  nature ;  they  are  peculiar  to 
the  equity  system  of  jurisj)rudence,  and,  so  far  as  they 
go,  serve  to  distinguish  it  from  the  law.  The  particular 
doctrines  which  will  be  treated  of  in  the  sections  of  this 
chapter  are  those  concerning  penalties  and  forfeitures,  elec- 
tion, satisfaction,  priorities,  notice,  performance,  and  the 
like.  In  the  present  section  I  shall  examine  the  doctrine 
concerning  penalties  and  forfeitures,  and  shall  treat,  in 
order,  first,  of  penalties,  and  second,  of  forfeitures. 

§  433.     Penalties — Ground  and  Mode  of  Interference. a — 

The  true  ground  of  equitable  interposition  and  relief  in  cases 
of  penalties  and  forfeitures  which  might  be  enforced  at  law 

§432,    (a)    This    chapter,    §§432-  Am,  St.  Rep.  657,  26  N.  E.  316;  Gay 

460,  is  cited  in  Cook-Keynolds  Co.  v.  Mfg.   Co.   v.   Camp,   65   Fed.   794,   13 , 

Chipman,    47    Mont.    289,    133    Pac.  C.'C.  A.  137,  25  U.  S.  App.  134;  Lake 

694;  Eoss  Tin  Mine  v.  Cherokee  Tin  View   M.    &   M.    Co.   v.   Hannon,    93 

Mining  Co.,  103  S.  C.  243,  88  S.  E.  8.  Ala.  87,  9  South.  539;  also  in  Eckert 

§433,   (a)   Cited  with   approval  in  v.   Searcy   (Miss.),   74   South.   818. 
Noyes  v.  Anderson,  124  N.  Y.  175,  21 


§  433  EQUITY    JURISPRUDENCE.  806 

was  stated  by  Lord  Macclesfield,  in  the  leading  case  of 
Peachy  v.  Duke  of  Somerset,  to  be  ''from  the  original  intent 
of  the  case,  and  the  court  can  give  a  party,  hy  ivay  of  recom- 
pense, all  that  he  expected  or  desired."  He  confined  the 
interference  of  equity,  however,  to  those  cases  in  which  the 
penalty  is  intended  only  to  secure  the  payment  of  money.^ 
The  doctrine  was  soon  extended,  so  that  it  embraces  cases 
where  the  penalty  is  used  not  merely  to  secure  a  money 
payment,  but  as  a  security  for  the  performance  of  some 
collateral  act.^  In  its  most  general  scope  and  operation  the 
doctrine  may  be  stated  as  follows:  Wherever  a  penalty  or 
a  forfeiture  is  used  merely  to  secure  the  payment  of  a  debt, 
or  the  performance  of  some  act,  or  the  enjoyment  of  some 
right  or  benefit,  equity,  considering  the  payment,  or  per- 
formance, or  enjoyment  to  be  the  real  thing  intended  by 
the  agreement,  and  the  penalty  or  forfeiture  to  be  only  an 
accessory,  will  relieve  against  such  penalty  or  forfeiture 
by  awarding  compensation  instead  thereof,  proportionate 
to  the  damages  actually  resulting  from  the  non-payment, 
or  non-performance,  or  non-enjoyment,  according  to  the 
stipulations  of  the  agreement.^    The  test  which  determines 

§  433,  1  Peachy  v.  Duke  of  Somerset,  1  Strange,  447. 

§  433,  2  Soloman  v.  Walter,  1  Brown  Ch.  418,  per  Lord  Thurlow.  The 
doctrine  of  equitable  interference  to  relieve  against  penalties  and  for- 
feitures has  been  described  and  discussed  by  some  writers  as  a  branch  of 
the  jurisdiction  in  cases  of  accident.  In  very  ancient  times,  when  the 
powers  of  the  court  of  chancery  were  restricted  by  the  language  of  the 
royal  decree  to  certain  specified  heads,  as  good  faith,  conscience,  fraud, 
mistake,  and  accident,  and  it  was  necessary  that  every  new  exercise  of 
power  should  be  referred  to  some  one  of  these  heads,  it  may  have  been 
claimed  that  the  jurisdiction  over  penalties  belonged  to  the  head  of  acci- 
dent. But  it  is  evident  that  this  is  not  the  true  source  of  the  jurisdic- 
tion; there  can  be  no  pretense  of  any  accident  in  the  execution  of  agree- 
ments containing  penalties.  The  doctrine  has  a  deeper  foundation  in 
universal  principles  of  right,  as  shown  in  the  preceding  chapter,  section  II. 

§433,    (b)   The   text   is   quoted  in  385,  132  S.  W.  255;  and  in  Ross  Tin 

Williams  v.  Pratt,  10  Cal.  App.  625,  Mine   v.   Cherokee   Tin   Mining   Co., 

103    Pac.    151;    Swofford    Bros.    Dry  103  S.  C.  243,  88  S."  E.  8. 
Goods  Co.  V.  Randolph,  151  Mo.  App. 


807  CONCERNING   PENALTIES   AND    FORFEITURES.  §  433 

whether  equity  will  or  will  not  interfere  in  such  cases  is 
the  fact  whether  compensation  can  or  cannot  be  adequately 
made  for  a  breach  of  the  obligation  which  is  thus  secured. 
If  the  penalty  is  to  secure  the  mere  payment  of  money, 
compensation  can  always  be  made,  and  a  court  of  equity  will 
relieve  the  debtor  party  upon  his  paying  the  principal  and 
interest.^  If  it  be  to  secure  the  performance  of  some  col- 
lateral act,  and  compensation  for  a  non-performance  can  be 
made,  a  court  of  equity  will  ascertain  the  amount  of  dam- 
ages, and  relieve  upon  their  payment.^  It  is  a  familiar 
doctrine,  therefore,  that  if  the  penalty  is  inserted  to  secure 
the  payment  of  a  pecuniary  obligation,  relief  against  it  will 
be  granted  to  the  debtor  upon  his  payment  of  the  real 
amount  due  and  secured,  together  with  interest  and  costs, 
if  any  have  accrued.'*  Where  the  penalty  is  to  secure  the 
performance  of  some  collateral  act  or  undertaking,  equity 
will  interpose,  if  adequate  compensation  can  be  made  to  the 
creditor  party.  The  original  practice  in  such  cases  was  for 
the  court  of  equity  to  retain  the  bill,  direct  an  issue  to  ascer- 
tain the  amount  of  damages,  and  to  grant  relief  upon  pay- 
ment of  the  damages  thus  assessed  by  the  jury.^     By  the 

§433,  3  2  Lead.  Cas.  Eq.,  4th  Am.  ed.,  2014,  2023,  2044,  and  notes; 
Reynolds  v.  Pitt,  19  Ves.  140,  and  cases  cited  in  the  two  following  notes; 
Bowser  v.  Colby,  1  Hare,  128;  Gregory  v.  Wilson,  9  Hare,  683;  Brace- 
bridge  V.  Buckley,  2  Price,  200;  Nokes  v.  Gibbon,  3  Drew.  681;  Bargent 
V.  Thomson,  4  Giff.  473;  Hagar  v.  Buck,  44  Vt.  285,  8  Am.  Rep.  368; 
Hancock  v.  Carlton,  6  Gray,  39;  Thompson  v.  Whipple,  5  R.  I.  144; 
Walker  v.  Wheeler,  2  Conn.  299;  Michigan  St.  Bank  v.  Hammond,  1 
Doug.  (Mich.)  527;  Giles  v.  Austin,  38  N.  Y.  Sup.  Ct.  215,  62  N.  Y.  486. 

§  433,  4  Elliott  V.  Turner,  13  Sim.  477 ;  In  re  Dagenham  Dock  Co., 
L.  R.  8  Ch.  1022;  Skinner  v.  Dayton,  2  Johns.  Ch.  535,  17  Johns.  357; 
Deforest  v.  Bates,  1  Edw.  Ch.  394;  Giles  v.  Austin,  38  N.  Y.  Sup.  Ct. 
215;  Bowen  v.  Bowen,  20  Conn.  126;  Carpenter  v.  Westcott,  4  R.  I.  225; 
Walling  V.  Aiken,  1  McMuU.  Eq.  1;  Moore  v.  Platte,  8  Mo.  467;  Bright 
V.  Rowland,  3  How.  (Miss.)  398. 

§  433,  5  Hardy  v.  Martin,  1  Brown  Ch.  419,  note ;  1  Cox,  26 ;  Benson 
V.   Gibson,   3   Atk.   395;   Errington  v.  Arnesly,   2   Brown   Ch.   341,   343; 

§433,  (c)  The  text  is  cited  to  this  eflfect  in  Bell  v.  Scranton  Coal  Mines 
Co.,  59  Wash.  659,  110  Pac.  628. 


§  434  EQUITY    JURISPRUDENCE.  808 

C  more  modern  practice  the  court  of  equity  would  doubtless 
/  determine  the  amount  of  damages  itself,  without  the  inter- 
vention of  a  jury.^ 

§  434.  Form  of  Relief.^ — While  the  two  jurisdictions  at 
law  and  in  equity  were  kept  distinct,  although  perhaps 
given  to  the  same  tribunal,  the  form  of  the  remedy  in  which 
relief  was  obtained  against  a  penalty  was  that  of  a  suit 
brought  by  the  debtor  party  to  procure  the  agreement  to 
be  surrendered  up  and  canceled,  or  the  forfeiture  perhaps 
to  be  set  aside,  upon  payment  of  the  debt  or  damages ;  and 
this  decree  would  often  be  accompanied  by  an  injunction  re- 
straining an  action  at  law  upon  the  agreement  brought  or 
threatened  by  the  creditor  party.  Under  the  modern  legis- 
lation, and  especially  under  the  reformed  procedure,  the 
rights  of  the  debtor  party  would  be  protected,  and  the  relief 
obtained,  without  any  separate  suit  in  equity,  but  by  an 
[  equitable  defense  set  up  in  the  action  at  law  by  which  the 
creditor  sought  to  enforce  the  literal  terms  of  the  agree- 
ment. It  has,  however,  become  unnecessary,  in  many  in- 
stances, to  invoke  the  purely  equitable  jurisdiction  in  order 
to  avoid  penalties.  The  equitable  doctrine,  as  above  de- 
scribed, has  to  a  considerable  extent  been  incorporated  into 
the  law,  partly  as  the  result  of  statute,  and  partly  from 
the  gradual  development  of  equitable  principles  in  the  com- 
mon law.  Whatever  be  the  true  explanation,  the  rule  is 
now  very  general,  even  if  not  universal,  that  a  recovery  in 

Skinner  v.  Dayton,  2  Johns.  Ch.  534,  535;  Bowen  v.  Bowen,  20  Conn. 
127;  Gould  V.  Bugbee,  C  Gray,  371,  375;  Hagar  v.  Buck,  44  Vt.  285,  8 
Am.  Rep.  368;  Pittsburgh  R.  R.  v.  Mt.  Pleasant  R.  R.,  76  Pa.  St.  481, 
490 ;  Hackett  v.  Alcock,  1  Call,  4C3. 

§  433,  (d)  The  text  is  quoted  in  retain  jurisdiction  to  award  dam- 
Baltimore  &  N.  Y.  R.  R.  Co.  V.  Bou-  ages,  unless  there  is  some  equitable 
vier,  70  N.  J.  E'q.  158,  62  Atl.  868,  relief  granted  to  which  damages 
by  Pitney,  V.  C;  and  in  Ross  Tin  would  be  incidental). 
Mine  v.  Cherokee  Tin  Mining  Co.,  §  434,  (a)  Cited  in  Lake  View  M. 
103  S.  C.  243,  88  S.  E.  8  (where  &  M.  Co.  v.  Hannon,  93  Ala.  97,  9 
equity  refuses  to  declare  a  forfeit-  South.  539. 
ure  or  enforce  a  penalty,  it  will  not 


809         CONCERNING   PENALTIES   AND   FORFEITURES.       §  §  435,  486 

actions  at  law  upon  contracts  which  contain  an  express 
stipulation  for  a  penalty  is  limited  to  the  actual  debt  due,  or 
the  actual  damages  sustained. ^     The  law  courts  have  not, 
however,  gone  to  the  same  length  in  adopting  the  equitable  '. 
principle  in  cases  of  forfeiture. 

§  435.  Penalties  Defined. — Such  being  the  general  doc- 
trine, the  important  and  practical  inquiry  in  the  vast  ma- 
jority of  cases  is.  What  are  the  distinctive  features  of  a 
penalty?  or.  What  kind  of  stipulation  or  provision  in  an 
agreement  amounts  to  a  penalty,  so  that  it  may  come  within 
the  scope  of  the  equitable  doctrine?  When  the  stipulation 
is  intended  to  secure  merely  the  payment  of  money,  the 
test  is  easy  and  plain,  and  well  established.  When  it  is 
designed  to  secure  the  performance  of  some  collateral  act, 
the  question  is  much  more  difficult  to  answer,  and  involves 
a  statement  of  the  differences  between  penalties  and  pro- 
visions for  the  payment  of  ''liquidated  damages."  The 
question  what  is  and  what  is  not  a  penalty  I  now  proceed 
to  examine. 

§  436.  To  Secure  the  Payment  of  Money  Alone. — Where 
the  act  secured  to  be  done  is  merely  the  payment  of  money, 
the  test  is  simple  and  well  established.  It  may  be  regarded 
as  a  rule  of  universal  application,  that  if  a  party  for  any 
reason  is  liable  to  pay,  or  binds  himself  to  pay,  a  certain 
sum  of  money,  and  adds  a  stipulation  to  the  effect  that  in 
case  such  sum  shall  not  be  paid  at  the  time  agreed  upon  he 
shall  then  be  liable  to  pay,  or  become  bound  to  pay,  a  larger 
sum  of  m,oney,  the  stipulation  to  pay  the  larger  sum  is  in- 
variably and  necessarily  a  penalty.  Of  course,  in  this  prop- 
osition it  is  understood  that  the  "larger  sum"  is  not  simply 
the  lawful  interest  accruing  upon  the  principal  actually 

§  434,  1  In  most  of  the  states  the  judgment  at  law  is  limited  to  the 
amount  of  debt  or  damages  actually  due  or  sustained;  in  a  few,  however, 
the  judgment  is  formally  entered  for  the  whole  sum  mentioned  in  the 
penalty,  but  with  a  provision  that  it  is  to  be  satisfied  by  a  payment  of 
the  actual  debt  or  damages. 


§  436  EQUITY    JUmSPEUDENCE.  810 

due.^  The  same  doctrine  may  be  stated  in  more  compre- 
hensive terms,  in  the  language  of  one  of  the  most  able  of 
modern  English  chancellors:  ''The  law  is  perfectly  clear 
that  where  there  is  a  debt  actually  due,i  and  in  respect  of 
that  debt  a  security  is  given,  be  it  by  way  of  mortgage,  or 
be  it  by  way  of  stipulation,  that  in  case  of  its  not  being 
paid  at  the  time  appointed,  a  larger  sum  shall  become  pay- 
able and  be  paid, — in  either  of  these  cases  equity  regards 
the  security  that  has  been  given  as  a  mere  pledge  for  the 
debt,  and  it  will  not  allow  either  a  forfeiture  of  the  property 
pledged  or  any  augmentation  of  the  debt  as  a  penal  pro- 
vision, on  the  ground  that  equity  regards  the  contemplated 
forfeiture  which  might  take  place  at  law  with  reference  to 
the  estates  as  in  the  nature  of  a  penal  provision  against 
which  equity  will  relieve  when  the  object  in  view,  viz.,  the 
securing  of  the  debt,  is  attained,  and  regarding  also  the 
stipulation  for  the  payment  of  a  larger  sum  of  money  if 
the  sum  be  not  paid  at  the  time  it  is  due,  as  a  penalty  and 
a  forfeiture  against  which  equity  will  relieve.  "^  The  cri- 
terion here  given,  for  all  cases  where  the  mere  payment  of 
a  pecuniary  obligation  is  intended  to  be  secured,  applies, 
it  will  be  observed,  alike  to  a  penalty  and  to  a  forfeiture. 
If  the  additional  stipulation  involves  a  liability  for  a  larger 
sum  of  money  only,  it  is  a  penalty;  if  it  involves  the  loss 
of  lands,  chattels,  or  securities  pledged,  it  is  a  forfeiture.'' 
The  same  test,  in  substance,  determines  the  nature  of  the- 
provision  by  which  the  performance  of  some  collateral  act 
is  secured.  If  the  act  thus  secured  be  single,  and  the  com- 
pensatory damages  justly  resulting  from  its  non-perform- 
ance can  be  ascertained  with  reasonable  certainty,  and  the 

§  436,  1  It  should  be  observed  by  the  student  that  the  word  "due"  is 
used  here  in  its  legal  meaning,  of  something  agreed  to  he  paid,  and  not 
in  its  popular  sense,  of  something  already  payable. 

§  436,  2  Thompson  v.  Hudson,  L.  R.  4  H.  L.  Cas.  1,  15,  per  Hatherley, 
L.  C. 

§  436,   (a)    The  text  is   quoted  in  §  436,  (b)  The  text  is  cited  to  this 

Wrenn  v.  University  Land  Co.,  65  effect  in  Bell  v.  Scranton  Coal  Mines 
Or.  432,  133  Pac.  627.  Co.,  59  Wash.  659,  110  Pac.  628. 


811  CONCERNING   PENALTIES   AND   FORFEITURES.  §  437 

stipulation  binds  the  debtor  party  to  pay  a  fixed  sum  larger 
than  such  amount  of  damages,  then  the  stipulation  is  a 
penalty.^ 

§  437.  Stipulations  not  Penalties — Alternative  Stipula- 
tions.— Such  being  the  general  test  by  which  to  determine 
the  nature  of  a  penalty,  there  are  certain  kinds  of  stipula- 
tions not  unfrequently  inserted  in  agreements  which  have 
been  judicially  interpreted  and  held  not  to  be  penalties,  and 
therefore  not  subject  to  be  relieved  against  by  courts  of 
equity.  The  nature  and  effect  of  these  stipulations  I  shall 
briefly  explain.  The  first  instance  is  that  of  a  contract  by 
the  terms  of  which  the  contracting  party  so  binds  himself 
that  he  is  entitled  to  perform  either  one  of  two  alternative 
stipulations,  at  his  option ;  and  if  he  elects  to  perform  one 
of  these  alternatives,  he  promises  to  pay  a  certain  sum  of 
money,  but  if  he  elects  to  perform  the  other  alternative, 
then  he  binds  himself  to  pay  a  larger  sum  of  money.  To 
state  the  substance  of  the  agreement  in  briefer  terms,  the 
contracting  party  may  do  either  of  two  things,  but  is  to  pay 
higher  for  one  alternative  than  for  the  other.  In  such  a 
case  equity  regards  the  stipulation  for  a  larger  payment,  not 
as  a  penalty,  but  as  liquidated  damages  agreed  upon  by  the 
parties.  It  will  not  relieve  the  contracting  party  from  the 
payment  of  the  larger  sum,  upon  his  performance  of  the 
latter  alternative  to  which  such  payment  is  annexed;  nor, 
on  the  other  hand,  will  it  deprive  him  of  his  election  by  com- 
pelling him  to  abstain  from  performing  whichever  alter- 
native he  may  choose  to  adopt. ^  ^ 

§436,  3  See  post,  §§  440-445,  where  this  subject  is  more  fully  ex- 
amined, under  the  head  of  ''liquidated  damages." 

§437,  1  French  v.  Macale,  2  Dru.  &  War.  274;  Parfitt  v.  Chambre, 
L.  R.  15  Eq.  36 ;  Herbert  v.  Salisbury,  etc.,  R'y,  L.  R.  2  Eq.  221 ;  Hardy 

§  437,      (a)      This      paragraph      is  Mass.  236,  10  L.  B.  A.  768,  26  N.  E. 

quoted  in  full  in  Cavanaugh  v.  Con-  690,  the  defendant  covenanted  never 

way,  36  E.  I.  571,  90  Atl.  1080.  to  practice  his  profession  in  a  cer- 
Thu3,  in   Smith   v.   Berg«ngren,   153 


§  438  EQUITY   JURISPRUDENCE.  812 

§  438.  For  the  Reduction  of  an  Existing  Debt  upon 
Prompt  Payment. — The  second  instance  is  that  of  an  agree- 
ment in  substance  for  the  reduction  of  an  existing  debt,  on 
condition  of  prompt  payment  by  the  debtor.  A  stipulation 
reserving  to  a  creditor  the  right  to  have  full  payment  of  the 
money  due  on  an  existing  contract,  in  case  there  should  be 
a  failure  to  pay  a  smaller  sum  on  a  specified  day,  is  not  a 
penalty.    Wlierever,  therefore,  a  certain  sum  of  money  is 

V.  Martin,  1  Cox,  27.  The  leading  case  in  which  the  doctrine  of  the  text 
was  sustained  is  French  v.  Macale,  2  Dru.  &  War.  274.  Lord  St.  Leon- 
ards states  the  law  therein  as  follows:  "If  a  man  covenant  to  abstain 
from  doing  a  certain  act,  and  agree  that  if  he  do  it  he  will  pay  a  sum 
of  money,  it  would  seem  that  he  will  be  compelled  to  abstain  from  doing 
that  act;  and  just  as  in  the  converse  case,  he  cannot  elect  to  break  his 
engagement  by  paying  for  his  violation  of  the  contract.  .  .  .  The  ques- 
tion for  the  court  to  ascertain  is,  whether  the  party  is  restricted  by  cove- 
nant from  doing  the  particular  act,  although  if  he  do  it,  a  payment  is 
reserved;  or  whether,  according  to  the  true  construction  of  the  contract, 
its  meaning  is,  that  the  one  party  shall  have  a  right  to  do  the  act,  on 
payment  of  what  is  agreed  upon  as  an  equivalent.  If  a  man  let  meadow- 
land  at  two  guineas  an  acre,  and  the  contract  is,  that  if  the  tenant  choose 
to  employ  it  in  tillage  he  may  do  so,  paying  an  additional  rent  of  three 
guineas  an  acre,  no  doubt  this  is  a  perfectly  good  and  unobjectionable 
contract;  the  plowing  up  the  land  is  not  inconsistent  with  the  contract 
which  provides  that  in  case  the  act  is  done  the  landlord  is  to  receive  an 
increased  rent."  Parfitt  v.  Chambre,  L.  R.  15  Eq.  36,  is  also  a  very 
strong  case.  An  award  of  arbitrators  (which  was,  of  course,  binding 
as  a  contract)  directed  that  defendant  should  pay  to  plaintiff  for  her  life 
an  annuity  of  twelve  hundred  pounds  a  year;  and  that  in  order  to  secure 
the  annuity,  defendant  should  within  two  months  purchase,  on  behalf  of 
plaintiff,  a  government  annuity  of  twelve  hundred  pounds  a  year;  and 
that  if  the  annuity  should  not  be  thus  purchased  within  the  two  months, 
then,  in  addition  to  the  annuity,  a  further  sum  of  one  hundred  pounds 
should  become  due  and  payable  by  defendant  to  plaintiff  on  the  last  day 
of  the  second  month,  and  a  like  sum  of  one  hundred  pounds  on  the  last 
day  of  each  successive  month,  until  such  annuity  should  be  purchased. 

tain  town  so  long  as  plaintiff  should  to  be  neither  liquidated  damages  nor 

be  in  practice  there,  provided,  how-  a  penalty,  but  a  price  fixed  for  what 

ever,  that  he  should  have  the  right  the    contract   permitted    him    to    do. 

to  do  so  at  any  time  after  five  years  See,  also,  Taylor  v.   Smith,  24  App. 

by   paying   the   plaintiff   $2,000,   but  Div.  519,  49  N.  Y.  Supp.  41. 
not  otherwise.     The   court  held  this 


813  CONCERNING    PENALTIES    AND    FORFEITURES.  §  438 

actually  due,  either  from  a  present  advance  or  from  any 
other  cause,  and  the  creditor  enters  into  an  agreement  with 
his  debtor  to  take  a  lesser  sum  in  satisfaction,  provided  that 
lesser  sum  is  secured  in  a  specified  manner  and  paid  at  a 
specified  day,  but  if  any  of  the  stipulations  of  the  agreement 
are  not  performed  by  the  debtor  according  to  the  terms 
thereof,  then  the  creditor  shall  be  entitled  to  be  paid  and  to 
recover  the  whole  of  the  original  debt,  such  provision  for  a 
return  by  the  creditor  to  his  original  rights  does  not  con- 

The  award  added :  "These  monthly  payments  are  to  be  considered  as  addi- 
tional to  the  payments  due  in  respect  of  the  annuity,  and  as  a  penalty 
for  delay  in  the  purchase  and  securing  of  the  same."  The  defendant 
never  purchased  any  annuity.  This  suit  is  brought  to  recover  six  hun- 
dred pounds,  one  half-year's  installment  due  of  the  annuity,  and  also 
seven  hundred  pounds  for  seven  monthly  payments  unj^aid  of  the  one 
hundred  pounds  additional.  The  counsel  for  the  plaintiff  claimed  (p.  38) 
that  the  contract  was  one  in  the  alternative,  either  to  purchase  and  settle 
an  annuity  or  to  pay  an  annuity  plus  one  hundred  pounds  a  month,  until 
purchase  and  settlement.  The  defendant's  counsel  claimed  that  the  pro- 
vision for  the  one  hundred  pounds  per  month  was  only  a  penalty,  and 
would  not  be  enforced,  and  that  plaintiff  was  only  entitled  to  recover 
the  six  hundred  pounds,  with  nominal  damages  for  the  delay.  Bacon, 
V.  C,  held  (pp.  39,  40)  that  the  use  of  the  word  "penalty,"  in  the  con- 
tract, was  not  decisive;  and  after  repeating  the  substance  of  the  contract 
as  above,  said :  "Whenever  the  defendant  saw  fit  he  might  have  relieved 
himself  from  the  obligation  of  that  payment  [the  one  hundred  pounds  a 
month]  by  performing  the  other  branch  of  the  contract,  namely,  the  pur- 
chase of  a  government  annuity.  Nothing  can  be  clearer  and  plainer. 
'Penalty'  it  is,  but  penalty  in  order  to  secure  the  performance  of  the 
other  branch  of  the  contract,  with  perfect  power  and  liberty  for  the  per- 
son upon  whom  the  burden  is  cast  to  relieve  himself  from  the  penalty 
or  additional  jjayment  whenever  he  shall  think  fit.  That  is  not  a  penalty 
which  courts  of  common  law  or  courts  of  equity  can  allow  to  be  relin- 
quished or  satisfied,  except  upon  the  terms  of  performing  that  very  thing 
which  the  introduction  of  the  penalty  imposes  in  order  to  effectuate  it." 
In  Hardy  v.  Martin,  1  Cox,  27,  Lord  Rosslyn,  speaking  of  such  an  alter- 
native contract  as  is  described  in  the  text,  said:  "It  was  the  demise  of 
land  to  a  lessee,  to  do  with  it  as  he  thought  pi'oper;  but  if  he  used  it  in 
one  way  he  was  to  pay  one  rent;  and  if  in  another,  another;  that  is  a 
different  case  from  an  agreement  not  to  do  a  thing,  with  a  penalty  for 
doing  it."  To  the  same  general  effect  is  Herbert  v.  Salisbury,  etc.,  R'y, 
L.  R.  2  Eq.  221,  224,  225,  per  Lord  Romilly,  M.  R. 


§  438  EQUITY    JURISPEUDENCE.  814 

stitute  a  penalty,  and  equity  will  not  interfere  to  prevent  its 
enforcement.!* 

§  438,  1  Thompson  v.  Hudson,  L.  R.  4  H.  L.  1;  reversing  L.  R.  2  Eq. 
612;  L.  R.  2  Ch.  255.  The  agreement  in  this  case  was  the  same  as  de- 
scribed in  the  text;  a  certain  sum  was  due,  and  the  creditor  agreed  to 
take  a  less  sum  in  satisfaction  if  it  was  secured  by  mortgage  in  a  speci- 
fied manner  and  was  paid  on  a  specified  day;  otherwise  the  original  sum 
was  to  become  due.  The  mortgage  for  the  lesser  sum  was  given,  but 
was  not  paid.  The  master  of  rolls,  Lord  Romilly,  held  the  provision  a 
penalty,  and  that  the  creditor  could  only  recover  the  smaller  sum.  This 
decision  was  affirmed  on  appeal  by  a  divided  court,  Lord  Chancellor 
Chelmsford  agreeing  with  the  view  taken  by  the  master  of  rolls,  and 
Lord  Justice  Turner  dissenting.  On  appeal  to  the  house  of  lords,  the 
decisions  below  were  reversed,  and  the  provision  was  declared  not  to  be 
a  penalty,  but  a  contract  binding  in  equity  as  well  as  at  law.  Lord  Chan- 
cellor Hatherley,  after  the  passage  quoted  in  the  note  under  the  preced- 
ing paragraph,  proceeded  as  follows:  "It  is  equally  clear,  upon  the  other 
hand,  that  where  there  is  a  debt  due,  and  an  agreement  is  entered  into 
at  the  time  of  that  debt  having  become  due,  and  not  being  paid,  in  regard 
to  further  indulgence  to  be  conceded  to  the  debtor,  or  further  time  to  be 
accorded  to  him  for  the  payment  of  the  debt,  or  in  regard  to  his  paying 
it  immediately,  if  that  be  a  portion  of  the  stipulations  of  the  agreement, 

§438,  (a)  See,  also,  U.  S.  Mort-  penalty.  "Public  policy  .  .  .  pro- 
gage  Co.  V.  Sperry,  138  U.  S.  313,  11  hibits  the  enforcement  of  contracts 
Sup.  Ct.  321;  Walsh  v.  Curtis  to  pay  more  than  lawful  interest  foi 
(Minn.),  76  N.  W.  52  (section  430  of  the  breach  of  a  simple  contract  to 
the  text  is  cited  in  this  case,  but  the  pay  a  debt  at  the  time  agreed,  but  is 
rule  as  laid  down  is  a  paraphrase  of  does  not  forbid  creditors  from  mak- 
this  section  of  the  text);  United  ing  enforceable  agreements  to  grant 
Shoe  Machinery  Co.  v.  Abbott,  158  their  debtor's  discounts  far  in  excess 
Fed.  762,  86  C.  C.  A.  118.  In  this  of  lawful  interest  for  the  payment 
case  a  lessee  of  machinery  agreed  to  of  their  obligations  before  they  are 
pay  certain  rentals  at  the  ends  of  due.  It  wisely  leaves  them  free  to 
the  months  succeeding  those  in  make  their  own  contracts  in  this  re- 
which  they  were  earned,  and  the  gard,  because  the  subject  and  the 
lessor  agreed  that  in  every  case  in  consideration  of  such  agreements  is 
which  the  lessee  should  pay  the  ren-  the  extension  of  credits,  and  not  the 
tals  earned  in  any  month  on  or  be-  mere  delay  or  forbearance  of  collec- 
fore  the  fifteenth  of  the  succeeding  tion  of  overdue  debts.  .  .  .  Counsel 
month,  or  fifteen  days  before  they  argue  that  the  actual  debt  was  the 
became  due,  the  lessor  would  grant  agreed  rentals  less  the  discount, 
a  discount  of  fifty  per  cent  in  cou-  But  the  parties  to  the  agreemept 
sideration  of  such  payment.  It  was  were  competent  to  contract  and  they 
held,  on  appeal,  that  this  was  not  a  expressly  agreed  to  the  contrary." 


815  CONCERNING    PENALTIES    AND    FORFEITURES.  §  439 

§  439.  For  Acceleration  of  Payment  of  an  Existing  Debt. 
The  third  instance  of  wliat  is  not  a  penalty  is  that  of  a  con- 
tract, not  that  the  amount  of  a  debt  should  be  increased, 
but  that  in  a  specified  event  the  time  for  the  payment  of 
a  certain  sum  due  shall  be  accelerated.  It  is  therefore  set- 
tled by  the  overwhelming  weight  of  authority  that  if  a 
certain  sum  is  due  and  secured  by  a  bond,  or  bond  and 
mortgage,  or  other  form  of  obligation,  and  is  made  pay- 
able at  some  future  day  specified,  with  interest  thereon 
made  payable  during  the  interval  at  fixed  times,  annually, 
or  semi-annually,  or  monthly,  and  a  further  stipulation 
provides  that  in  case  default  should  occur  in  the  prompt 
payment  of  any  such  portion  of  interest  at  the  time  agreed 
upon,  then  the  entire  principal  sum  of  the  debt  should  at 
once  become  payable,  and  payment  thereof  could  be  en- 
forced by  the  creditor,  such  a  stipulation  is  not  in  the 
nature  of  a  penalty,  but  will  be  sustained  in  equity  as  well 
as  at  law.     In  exactly  the  same  manner,  if  a  certain  sum 

or  at  some  future  time  which  may  be  named,  and  the  creditor  is  willing 
to  allow  him  certain  advantages  and  deductions  from  that  debt,  as  well 
as  to  extend  the  time  of  its  payment,  if  adequate  and  satisfactory  security 
is  afforded  him  as  a  consideration,  then  it  is  perfectly  competent  to  the 
creditor  to  say  that  if  the  payment  is  not  made  modo  et  forma  according 
to  the  stipulation,  the  right  to  the  original  debt  reverts."  Lord  West- 
bury,  in  the  same  case,  said  (p.  27)  :  "It  is  right  and  rational  for  a  credi- 
tor to  say  to  his  debtor,  'Provided  you  pay  me  half  of  the  debt  or  two 
thirds  of  the  debt  on  an  appointed  day,  I  will  release  you  from  the  rest, 
and  will  accept  the  money  so  paid  in  discharge  of  the  whole  debt;  but 
if  you  do  not  make  payment  of  it  on  that  day,  then  the  whole  debt  shall 
remain  due  to  me,  and  I  shall  be  at  libert}^  to  recover  it';  and  this  is  the 
view  which  a  court  of  equity  will  adopt.  ...  If  you  were  to  put  that 
proposition  to  any  plain  man  walking  the  streets  of  London,  there  could 
be  no  doubt  at  all  that  he  would  say  that  it  is  reasonable,  and  accordant 
with  common  sense.  But  if  he  was  told  that  it  was  requisite  to  go  to 
those  tribunals  before  you  could  get  that  plain  principle  and  conclusion 
of  common  sense  accepted  as  law,  he  would  undoubtedly  hold  up  his 
hands  with  astonishment  at  the  state  of  the  law."  See,  also,  Ford  v.  Lord 
Chesterfield,  19  Beav.  428 ;  Davis  v.  Thomas,  1  Russ.  &  M.  506 ;  Ex  parte 
Bennet,  2  Atk.  527;  Herbert  v.  Salisbury,  etc.,  R'y,  L.  R.  2  Eq.  221,  224, 
per  Lord  Romilly;  and  see  cases  cited  under  the  next  paragraph. 


§  439  EQUITY   JURISPRUDENCE.  816 

is  due  and  is  secured  by  any  form  of  instrument,  and  is 
made  payable  in  specified  installments,  with  interest,  at 
fixed  successive  days  in  the  future,  and  a  further  stipula- 
tion provides  that  in  case  of  a  default  in  the  prompt  pay- 
ment of  any  such  installment  in  whole  or  in  part  at  the 
time  prescribed  therefor,  then  the  whole  principal  sum 
of  the  debt  should  at  once  become  payable,  and  payment 
thereof  could  be  enforced  by  the  creditor,  such  stipulation 
has  nothing  in  common  with  a  penalty,  and  is  as  valid  and 
operative  in  equity  as  at  the  law.i  «■     The  stipulation  is 

§439,  1  Sterne  v.  Beck,  1  De  Gex,  J.  &  S.  595,  11  Week.  Rep.  791; 
Stanhope  v.  Manners,  2  Eden,  197;  People  v.   Superior   Court  of  New 
York,  19  Wend.  104;  Noyes  v.   Clark,  7  Paige,  179,  32  Am.  Dec.  620 
Ferris  v.  Ferris,  28  Barb.  29;  Baldwin  v.  Van  Vorst,  10  N.  J.  Eq.  577 
Martin  v,  Melville,  11  N.  J.  Eq.  222;  Robinson  v.  Loomis,  51  Pa.  St.  78 
Sehooley  v.  Romain,  31  Md.  574,  579,  100  Am.  Dec.  87;   Ottawa  Plank 
Road   Co.   V.   Murray,  15  111.   337;   Basse   v.   Gallegger,  7  Wis.   442,   76 
Am.  Dec.  225;  Marine  Bank  v.  International  Bank,  9  Wis.  57,  68;  Ber- 
rinkott  v.  Traphagen,  39  Wis.  219;  Bennett  v.  Stevenson,  53  N.  Y.  508; 
Malcolm  v.  Allen,  49  N.  Y.  448;  Mallory  v.  West  Shore,  etc.,  R.  R.,  35 
N.  Y.  Sup.  Ct.  175;  Willis  v.  O'Brien,  35  N.  Y.  Sup.  Ct.  536;  Gulden  v. 
O'Byrne,  7  Phila.  93;  Mobray  v.  Leckie,  42  Md.  474;  Wilcox  v.  Allen, 
36  Mich.  160 ;  Harper  v.  Ely,  56  III.  179 ;  Meyer  v.  Graeber,  19  Kan.  165 ; 
Pope  v.  Hooper,  6  Neb.  178 ;  Howell  v.  Western  R.  R.,  94  U.  S.  463.     In 
Malcolm  v.  Allen,  49  N.  Y.  448,  the  doctrine  was  carried  to  its  utmost 

§  439,    (a)   Quoted   and  applied  in  121     N.    W.    842.     In     general,     see 

Caldwell  v.  Kimbrough,  91  Miss.  877,  Hawkinson  v.  Banaghan,  203   Mass. 

45  South.  7.     Cited  with  approval  in  591,   89   N.   E.   1054.     In   Whelan   v. 

Moore  v.  Sargent,  112  Ind.  484,  14  N.  Reilly,   61  Mo.  565,  a  deed  of  trust 

E.  466;  Connecticut  Mut.  Life  Ins.  Co.  provided    that    the    whole     amount 

v.  Westerhoff,  58  Neb.  379,  76  Am.  should   become  due  upon  default  in 

St.  Rep.  101,  78  N.  W,  724;   Curran  payment    of    interest.     Default    was 

v.    Houston,    201    111.   442,   66   N.   E.  made   and   the   trustee   advertised   a 

228.     See,   also,  Magnusson   v.   Will-  sale.      The      debtor      tendered      the 

iams,  111  111.  450;  Hoodless  v.  Eeid,  amount    of    interest    together    with 

112  111.  105;  Whitcher  v.  Webb,  44  costs  before  the  sale,  but  the  trustee 

Cal.   127;   Mullen  v.   Gooding  Imple-  refused    to    receive     it    unless    the 

ment  &  Hardware  Co.,  20  Idaho,  348,  amount   of   the   principal   was   paid, 

118  Pac.  666;   Kerbaugh  v.  Nugent,  and    proceeded    with   the    sale.     The 

48  Ind.  App.  43,  95  N.  E.  336;  Roche  court  held  that  under  these  cireum- 

v.  Hiss,  84  N.  J.  Eq.  242,  93  Atl.  stances  the  sale  should  be  set  aside. 
804;  Russell  v.  Wright,  23  S.  D.  338, 


817  CONCERNING   PENALTIES    AND    FORFEITURES.  §  43i> 

sometimes  to  the  effect  that  if  a  default  in  payment  con- 
tinues for  a  specified  number  of  days,  and  sometimes  that 

possible  length.  The  mortgage  provided  that  upon  non-payment  of  in- 
terest for  thirty  days  after  it  became  due,  the  mortgagee  might  elect  (o 
treat  the  whole  principal  sum  as  due.  An  installment  and  interest  fell 
due  and  were  not  paid.  Before  the  thirty  days  were  ended  in  which  to 
make  his  election,  the  mortgagee  commenced  a  foreclosure  suit  based  only 
upon  the  installment  and  interest  then  due  and  payable.  The  thirty  days 
having  expired  while  this  suit  was  pending,  and  the  installment  and  in- 
terest not  having  been  paid,  the  mortgagee  elected  to  treat  the  whole  as 
due ;  the  court  held  that,  having  thus  made  his  election,  he  could  not  l)e 
compelled  to  accept  the  installment  and  interest  and  waive  the  stipula- 
tion; also,  that  he  did  not  estop  himself  from  enforcing  the  stipulation 
by  commencing  the  suit  before  the  thirty  days  had  expired,  in  order  to 
foreclose  merely  for  the  installment  and  interest  then  becoming  payalile, 
nor  even  by  receiving  payment  of  the  installment  of  principal  after  the 
thirty  days  had  ended.  In  Howell  v.  Western  R.  R.,  94  U.  S.  463,  it  was 
held  that  where  a  railroad  company  was  authorized  by  statute  to  issue 
its  bonds  which  should  not  mature  for  thirty  years,  to  be  secured  by  a 
mortgage  of  its  projDerty,  a  provision  in  the  mortgage,  that  on  default 
in  tte  payment  of  any  interest  coupon  the  whole  principal  sum  mentioned 
in  the  bond  should  become  payable,  was  void,  as  being  contrary  to  the 
statutory  authority.  But  the  mortgage  was  held  otherwise  valid.  Not- 
withstanding this  array  of  authority,  a  few  of  the  earlier  cases  pro- 
nounced such  a  provision  in  a  bond  or  mortgage  to  be  a  penalty,  and 
therefore  contrary  to  the  well-settled  doctrine  of  equity  jurisprudence. 
See  Mayo  v.  Judah,  5  Munf.  495.  It  has  also  been  held  in  at  least  one 
ease  that  where  a  certain  sum  is  due  and  payable  by  installments,  wilh- 
out  interest,  a  stipulation,  that  upon  default  in  the  prompt  payment  of 
any  installment  the  whole  principal  shall  at  once  become  payable,  is,  in 
effect,  a  penalty,  or  rather  a  forfeiture  of  the  interest  which  the  debtor 
would  be  entitled  to  have  discounted  or  rebated  upon  his  payment  of  the 
debt  before  it  was  due  and  payable,  and  therefore  such  a  stipulation 
should  be  relieved  against  by  a  court  of  equity :  Tiernan  v.  Hinman,  16 
111.  400.  I  will  add  that  in  Sterne  v.  Beck,  1  De  Gex,  J.  &  S.  595,  600, 
GOl,  the  lords  justices,  while  laying  down  the  rule  which  they  approve, 
state,  apparently  with  great  care,  that  the  debt  is  payable  in  installments, 
with  interest;  and  this  expression  is  repeated  by  them  on  every  occasion 
when  the  terms  of  the  agreement  to  which  the  rule  applies  are  mentioned. 
It  is  hardly  possible  to  avoid  the  inference  that  they  regarded  the  pay- 
ment of  interest  with  the  installments  as  an  important  element  of  the  rule 
which  they  adopt. 
1—52 


§  439  EQUITY    JURISPEUDENCB.  818 

the  creditor  may  elect  to  treat  tlie  whole  debt  as  payable; 
hut  the  same  rule  applies  to  all  such  forms.  The  provision 
for  accelerating  the  time  of  payment  of  the  whole  debt  in 
this  manner  may,  of  course,  be  waived  by  the  creditor, 
especially  when  it  is  made  to  depend  upon  his  election.^  ^  It 
seems  also  that  a  court  of  equity  may  relieve  against  the 
effect  of  such  provision,  where  the  default  of  the  debtor  is 
the  result  of  accident  or  mistake,  and  a  fortiori  when  it  is 
procured  by  the  fraud  or  other  inequitable  conduct  of  the 
creditor  himself.^  c 

§  439,  2  Langridge  v.  Payne,  2  Johns.  &  H.  423. 

§  439,  3  In  Martin  v.  Melville,  11  N.  J.  Eq.  222,  it  was  held  that  equity 
may  relieve  where  the  default  of  the  debtor  in  such  a  case  is  the  result 
of  accident  or  mistake;  and  in  Wilcox  v.  Allen,  36  Mich.  160,  it  was  held 
that  the  forfeiture  from  such  a  clause  should  not  be  enforced  where  the 
cause  of  the  delay  in  payment  was  that  the  mortgagor  in  good  faith, 
though  erroneously,  denied  his  liability.  But,  on  the  other  hand,  in  Fer- 
ris V.  Ferris,  28  Barb.  29,  where  the  party,  who  was  a  married  woman, 
relied  upon  the  absence  of  her  husband  and  her  own  ignorance  as  the 
reasons  for  the  default,  and  as  excusing  it,  the  stipulation  was  neverthe- 
less enforced.  Bennett  v.  Stevenson,  53  N.  Y.  508,  clearly  intimates  and 
concedes  that  fraud  or  improper  conduct  on  the  part  of  the  creditor  in 
procuring  the  default  would  operate  as  an  excuse,  and  be  a  sufficient 
ground  for  a  court  of  equity  to  interfere  and  restrain  an  enforcement  of 
the  clause. 

§  439,    (b)   In   Moore   v.   Sargent,  tage  of  a  default  in  the  payment  of 

112  Ind.  484,   14   N.  E.   466,   it  was  interest.     The    debtor    made    an    at- 

held  that  where  the  agreement  was  tempt  to   pay,   but   did  not   make  a 

absolute     that     the     whole     amount  technical  tender.     It  was  held  that 

should   become   due   upon   failure  to  the   creditor   could   not   enforce   the 

pay  one  note,  and  nothing  was  said  payment  of  the  principal.     In  Haw- 

of    any    option,  the    right    to    insist  kinson  v.  Banaghan,  203  Mass.  591, 

upon  an  immediate  payment  was  not  89     N.    E.    1054,     the     court     said: 

lost  by  an  acceptance  of  the  amount  "Where  there  is  no  language  in  the 

due  upon  one  note  after  its  matur-  mortgage  touching  the  subject  other 

ity.     Compare  Franklin  v.  Long,  191  than  the  statement  of  the  time  when 

Ala.    310,  68    South.    149.     But  see  the     installments     become     payable, 

Huston  v.  Fatka,  30  Ind.  App.   693,  and  when  the  only  breach  of  condi- 

66  N.  E.   74.  tion  is  a  failure  to  pay  an  early  in- 

§  439,  (c)  Thus,  in  Adams  v.  Euth-  stallment  before  others  have  become 

erford,   13    Or.   78,    8    Pac.   896,    the  due,"  equity  may  relieve, 

creditor   purposely   absented   herself  See  post,  §§  826,  833. 
in  order  that  she  might  take  advan- 


819  CONCERNING    PENALTIES    AND    FORFEITUEES.  §  440 

§  440.  Liquidated  Damages  Described  in  General.^ — The 
fourth  instance  to  be  mentioned  of  a  stipulation  which  is 
not  a  penalty  within  the  scope  and  meaning  of  the  equi- 
table doctrine  is  that  for  ''liquidated  damages."  If  the 
stipulation  is  one  properly  for  liquidated  damages,  and 
not  for  a  penalty,  equity  will  not  interfere  with  its  enforce- 
ment, but  if  the  case  was  one  coming  within  the  equitable 
jurisdiction,  it  would  be  treated  as  binding,  and  carried 
into  effect  by  a  court  of  equity.^  In  general,  where  the 
contract  is  for  the  performance  or  non-performance  of  some 
act  other  than  the  mere  payment  of  money,  and  there  is 
no  certain  measure  of  the  injury  which  will  be  sustained 
from  a  violation  of  the  agreement,  the  parties  may,  by  an 
express  clause  inserted  for  that  purpose,  fix  upon  a  sum 
in  the  nature  of  liquidated  damages  which  shall  be  payable 
as  a  compensation    for    such    violation.^  <5     The    question 

§  440,  1  Rolfe  V.  Peterson,  2  Brown  Pari.  C,  Toralins's  ed.,  436 ;  Lowe 
V.  Peers,  4  Burr.  2225;  Astley  v.  Weldon,  2  Bos.  &  P.  346;  Jones  v.  Green, 
3  Younge  &  J.  298;  Woodward  v.  Gyles,  2  Vern.  119;  Sainter  v.  Fergu- 
son, 1  Maen.  &  G.  286;  Bagley  v.  Peddie,  16  N.  Y.  469,  69  Am.  Dec. 
713;  Mott  V.  Mott,  11  Barb.  127;  Dakin  v.  Williams,  17  Wend.  447,  22 
Wend.  201;  Smith  v.  Coe,  33  N.  Y.  Sup.  Ct.  480;  O'Donnell  v.  Rosen- 
berg, 14  Abb.  Pr.,  N.  S.,  59;  Shute  v.  Hamilton,  3  Daly,  462;  Wolfe 
Creek,  etc.,  Co.  v.  Schultz,  71  Pa.  St.  180;  Streeper  v.  Williams,  48  Pa. 
St.  450 ;  Pierce  v.  Fuller,  8  Mass.  223,  5  Am.  Dec.  102 ;  Gushing  v.  Drew, 
97  Mass.  445;  Tiugley  v.  Cutler,  7  Conn.  291;  Gammon  v.  Howe,  14  Me. 
250;  Peine  v.  Weber,  47  111.  41;  Low  v.  Nolte,  16  111.  478;  Brown  v. 
Maulsby,  17  Ind.  10;  Hamilton  v.  Overton,  6  Blaekf.  206,  38  Am.  Dec. 
136 ;  Yenner  v.  Hammond,  36  Wis.  277. 

§440,   (a)  The  text,  §§440-445,  is  §§440-446,  is  cited  and  the  rules  as 

cited    in    Eikcnberry    v.    Thorn,    61  to  liquidated  damages  are  laid  down 

Ind.  App.  468,   112   N.  E.   112   (pen-  as  in  the  paragraphs  cited.     In  Con- 

alty).  don  v.  Kemper,  47  Kan.  126,   13  L. - 

§440,    (b)    Cited   to  this  effect  in  R.   A.   671,   27   Pae.   829,    §§440-447 

Moore  v.  Durnam,  63  N.  J.  Eq.  96,  are  cited.     This  section  is  cited  with 

51  Atl.  449.  approval  in  Illinois  Cent.  R.  R.   Co. 

§  440,  (c)  The  text  is  quoted  in  v.  Southern  Seating  &  Cabinet  Co., 
In  re  Ross  &  Son  (Del.  Ch.),  95  104  Tenn.  568,  78  Am.  St.  Rep.  933, 
Atl.  311.  In  Keeble  v.  Keeble,  85  50  L.  R.  A.  729,  58  S.  W.  303;  South- 
Ala.    552,    5    South.    149,    the    text,  era  Menhaden  Co.  v.  How,   71  Fla. 


§440 


EQUITY    JUEIS  PRUDENCE. 


820 


whether  a  sum  thus  stipulated  to  be  paid  is  a  "penalty"  or 
is  ''liquidated  damages"  is  often  difficult  to  determine.  It 
depends,  however,  upon  a  construction  of  the  whole  instru- 
ment, upon  the  real  intention  of  the  parties  as  ascertained 


128,  70  South.  1000.  See,  also,  Eas- 
ier V.  Beard,  39  Minn.  32,  38  N.  W. 
7:j3. 

The  controlling  consideration 
seems  to  be  that  it  would  be  diffi- 
cult, if  not  impossible,  to  ascertain 
the  damages  actually  sustained. 
Muse  V.  Swayne,  70  Tenn.  (2  Lea) 
251,  31  Am.  Eep.  607;  Tobler  v.  Aus- 
tin, 22  Tex.  Civ.  App.  99,  53  S.  W. 
706;  Studabaker  v.  Wlhite,  31  Ind. 
211,  99  Am.  Dec.  628;  Schroeder  v. 
Cal.  Yukon  Trading  Co.,  95  Fed. 
296;  Peekskill,  S.  C.  &  M.  K.  Co.  v. 
Village  of  Peekskill,  47  N.  Y.  Supp. 
305,  21  App.  Div.  94  (affirmed  in  59 
N.  E.  1128,  165  N.  Y.  628);  Willson 
V.  Mayor,  etc.,  of  Baltimore,  83  Md. 
203,  55  Am.  St.  Eep.  339,  34  Atl. 
774;  Mansur  &  Tebbetts  Impl.  Co.  v. 
Willet  (Okl.),  61  Pac.  1066;  Bren- 
nan  v.  Clark,  29  Neb.  385,  45  N.  W. 
472;  Nilson  v.  Town  of  Jonesboro, 
57  Ark.  168,  20  S.  W.  1093;  May  v. 
Crawford,  150  Mo.  504,  51  S.  W, 
693;  De  Graff,  Vrieling  &  Co.  v. 
Wickham,  89  Iowa,  720,  52  N.  W. 
503;  Mcintosh  v.  Johnson,  8  Utah, 
359,  31  Pac.  450;  Pogue  v.  Kaweah 
Power  &  Water  Co.  (Cal.),  72  Pac. 
144;  Haier  v.  MacDonald,  21  Okl. 
47,  96  Pac.  654;  Chicago,  B.  &  Q.  R. 
E.  Co.  V.  Dockery,  195  Fed.  221,  115 
C.  C.  A.  173;  City  of  Summit  v.  Mor- 
ris County  Traction  Co.,  85  N.  J.  L. 
193,  L.  R.  A.  1915E,  385,  88  Atl. 
1048;  Stratton  v.  Fike,  166  Ala.  203, 
51  South.  874;  Cox  v.  Smith,  93  Ark. 
371,  137  Am.  St.  Rep.  89,  125  S.  W. 
437;  Burley  Tobacco  Society  v.  Gil- 
laspy,  51  Ind.  App.  583,  100  N.  E. 
89;  Merica  v.  Burget,  36  Ind.  App. 


453,  75  N.  E.  1083;  St.  Louis  &  S.  F. 
E.  Co.  V.  Gaba,  78  Kan.  432,  97  Pac. 
435;  Walker  v.  Bement,  50  Ind.  App. 
645,  94  N.  E.  339;  Joeckel  v.  .John- 
son (Iowa),  159  N.  W.  672;  Ross  v. 
Loescher,  152  Mich.  386,  125  Am.  St. 
Eep.  418,  116  N.  W.  193;  Calbeck  v. 
Ford,  140  Mich.  48,  103  N.  W.  516; 
Kaplan  v.  Gray,  215  Mass.  269,  102 
N.  E.  421;  Sheffield-King  Milling 
Co.  V.  Domestic  Science  Bkg.  Co., 
95  Ohio,  180,  115  N.  E.  1014;  Hull 
V.  Angus,  60  Or.  95,  118  Pac.  284; 
Kellam  v.  Hampton,  58  Tex.  Civ. 
App.  484,  124  S.  W.  970;  Sheard  v. 
United  States  Fidelity  &  Guaranty 
Co.,  58  Wash.  29,  107  Pac.  1024,  109 
Pac.  276;  Grand  Union  Laundry  Co. 
V.  Carney,  88  Wash.  327,  153  Pac.  5. 
It  is  immaterial  whether  the  un- 
certainty lies  in  the  nature  of  the 
subject  itself,  or  in  the  particular 
circumstances  of  the  case:  Herberger 
V.  H.  E.  Orr  Co.,  62  Wash.  526,  114 
Pac.  178.  In  Ward  v.  H.  R.  B.  Co., 
125  N.  Y.  230,  26  N.  E.  256,  the  rule 
was  stated  as  follows:  "We  may,  at 
most,  say  that  where  they  have 
stipulated  for  a  payment  in  liquida- 
tion of  damages  which  are  in  their 
nature  uncertain,  and  unascertain- 
able  with  exactness,  and  may  be  de-  , 
pendent  upon  extrinsic  considera- 
tions and  circumstances,  and  the 
amount  is  not,  on  the  face  of  the 
contract,  out  of  all  proportion  to 
the  probable  loss,  it  will  be  treated 
as  liquidated  damages." 

"Whether  a  contract  is  such  that 
'from  the  nature  of  the  ease'  it 
would  be  impracticable  or  extremely 
difficult  to  fix  the  actual  damage  sus- 


821 


CONCERNING   PENALTIES   AND    FORFEITURES. 


§440 


from  all  the  language  which  they  have  used,  from  the 
nature  of  the  act  to  be  performed,  or  not  to  be  performed, 
from  the  consequences  which  naturally  result  from  a  viola- 
tion of  the  contract,  and  from  the  circumstances  generally 


tained  by  a  breacli  thereof  is  a  ques- 
tion of  fact,  which  must  be  deter- 
mined in  each  particular  ease."  Pa- 
cific Factor  Co.  v.  Adler,  90  Cal.  110, 
25  Am.  St.  Rep,  102,  27  Pac.  36. 

"Whether  the  sum  mentioned  shall 
be  considered  as  a  penalty  or  as  liqui- 
dated damages  is  a  question  of  con- 
struction on  which  the  court  may  be 
aided  by  circumstances  extraneous 
to  the  writing.  The  subject-matter 
of  the  contract,  the  intention  of  the 
parties,  as  well  as  other  facts  and 
circumstances,  may  be  inquired  into, 
although  the  words  are  to  be  taken 
as  proved  exclusively  by  the  writ- 
ing." Foley  V.  McKeegan,  4  Iowa 
(4  Clarke),  1,  66  Am.  Dec.  107.  See, 
also,  Wallis  Iron  Works  v.  Mon- 
mouth Park  Ass'n,  55  N.  J.  L.  132, 
39  Am.  St.  Rep.  626,  19  L.  R.  A. 
456,  26  Atl.  140;  Sanford  v.  First 
Nat.  Bank,  94  Iowa,  680,  63  N.  W. 
459;  Taylor  v.  Times  Newspaper  Co., 
83  Minn.  523,  85  Am.  St.  Rep.  473, 
86  N.  W.  760;  Muse  v.  Swayne,  70 
Tenn.  (2  Lea)  251,  31  Am.  Rep.  607; 
Emery  v.  Boyle,  200  Pa.  St.  249,  49 
Atl.  779;  City  of  New  Britain  v. 
New  Britain  Tel.  Co.,  74  Conn.  326, 
50  Atl.  881;  Little  v.  Banks,  85 
N.  Y.  259;  Kilbourne  v.  Burt  & 
Brabb  Lumber  Co.,  23  Ky.  L.  Rep. 
985,  55  L.  R.  A.  275,  64  S.  W.  631; 
Keck  V.  Bieber,  148  Pa.  St.  645,  33 
Am.  St,  Rep,  846,  24  Atl,  170;  De 
Graff,  Vrieling  &  Co,  v,  Wiekham,  89 
Iowa,  720,  52  N.  W.  503;  Hennessy 
V.  Metzger,  152  III.  505,  43  Am,  St, 
Rep,  267,  38  N,  E,  1058;  United 
States  V.  Bethlehem  Steel  Co.,  205 
U,  S.  105,  51  L.  Ed,  731,  27  Sup.  Ct. 


450;  Nakagawa  v.  Okamoto,  164  Cal. 
718,  130  Pac.  707;  Florence  Wagon 
Works  V,  Salmon,  8  Ga,  App.  197, 
68  S.  E.  866;  Ross  v.  Locscher,  152 
Mich.  386,  125  Am,  St,  Rep.  418,  116 
N.  W,  193;  Gougar  v,  Buffalo 
Specialty  Co,,  26  Colo.  App.  8,  141 
Pac.  511.     See,  also,  notes  to   §  442. 

In  Florence  Wagon  Works  v,  Sal- 
mon, 8  Ga.  App,  197,  68  S,  E.  866, 
the  court  said  that  the  question  is 
whether  the  provision  was  inserted 
for  the  purpose  of  deterring  a  party 
from  breaching  his  agreement  and 
penalizing  him  if  he  should  do  so,  or 
whether  it  was  a  sum  which  the 
parties  in  good  faith  agreed  upon  as 
representing  those  damages  which 
would  ensue  if  the  contract  should 
be  broken. 

Thus,  "in  a  contract  to  support 
and  maintain  one  for  the  remainder 
of  his  life,  fixing  a  sum  to  be  paid 
in  case  of  breach  and  denominating 
it  a  'penal  sum,'  the  amount  cannot 
be  construed  to  be  liquidated  dam- 
ages, when  there  is  nothing  in  the 
nature  of  the  case  and  the  tenor  of 
the  agreement  indicating  that  the 
parties  themselves  fairly  estimated 
and  adjusted  the  damages  at  the 
time  of  making  the  contract": 
Wilkes  V,  Bierne,  08  W,  Va.  82,  31 
L.  R.  A.  937,  69  S.  E.  366, 

Where  the  contract  does  not  evi- 
dence an  intention  to  treat  a  sum  as 
liquidated  damages,  it  will  be  hold 
to  be  a  penalty:  Kollam  v.  Hampton, 
58  Tex.  Civ.  App.  484,  124  S.  W.  970. 

"If  the  sum  be  evidently  fixed  to 
evade  a  statute  or  to  cloak  oppres- 
sion, the  court  will  relieve  by  treat- 


§440 


EQUITY   JURISPRUDENCE. 


822 


surrounding  the  transaction.  It  Las  been  repeatedly  held 
that  the  words  "penalty"  or  'liquidated"  damages,  if 
actually  used  in  the  instrument,  are  not  at  all  conclusive  as 
to  the  character  of  the  stipulation. ^  If  upon  the  whole 
agreement  the  court  can  see  that  the  sum  stipulated  to  be 
paid  was  intended  as  a  penalty,  the  designation  of  it  by 
the  parties  as  ''liquidated  damages"  will  not  prevent  this 
construction ;  if,  on  the  other  hand,  the  intent  is  plain  that 
the  sum  shall  be  "liquidated  damages,"  it  will  not  be  treated 
as  a  penalty  because  the  parties  have  called  it  by  that  name. 
It  is  well  settled,  however,  that  if  the  intent  is  at  all  doubt- 
ful, the  tendency  of  the  courts  is  in  favor  of  the  interpre- 
tation which  makes  the  sum  a  penalty.^  e     The  mere  large- 

§440,  2Dimech  v.  Corlett,  12  Moore  P.  C.  C.  199;  Jones  v.  Green,  3 
Younge  &  J.  304;  Green  v.  Price,  13  Mees.  &  W.  701,  16  Mees.  &  W. 
34G;  Betts  v.  Burch,  4  Hurl.  &  N.  511,  per  Bramwell,  B.;  Cbilliner  v. 
Chilliner,  2  Ves.  528;  Coles  v.  Sims,  5  De  Gex,  M.  &  G.  1;  Gushing  v. 


ing  it  as  a  penalty."  Kilbourne  v. 
Burt  &  Brabb  Lumber  Co.,  23  Ky. 
L.  Kep.  985,  55  L.  R.  A.  275,  64  S. 
W.  631.  In  the  case  of  Williston  v. 
Mathews,  55  Minn.  422,  56  N.  W. 
1112,  there  was  a  stipulation  that 
in  case  of  breach  the  other  party 
might  go  into  the  market  and  buy 
at  the  expense  of  the  defaulting 
party.  It  was  held  that  before  a 
provision  in  the  contract  can  be 
given  the  effect  of  a  stipulation  fix- 
ing a  measure  of  damages  either 
greater  or  less  than  the  law  would 
give,  it  must  fairly  appear  from  its 
language,  construed  in  the  light  of 
the  nature  of  the  contract  and  the 
situation  of  the  parties,  that  they 
intended  it  to  have  that  effect. 

It  has  been  held  that  the  fact 
that  the  amount  of  the  stipulated 
damages  increases  with  time  does 
not  make  the  provision  a  penalty: 
Bilz  V.  Powell,  50  Colo.  482,  117  Pac. 
344.     This    seems    correct   when    the 


damages  actually  increase  with  time, 
as  in  Eilers  Music  House  v.  Oriental 
Co.,  69  Wash.  618,  125  Pae.  1023. 
But  in  the  absence  of  such  a  show- 
ing it  seems  doubtful. 

§440,  (d)  The  text  is  quoted  in  In 
re  Eoss  &  Son  (Del.  Ch.),  95  Atl. 
311. 

§  440,  (e)  Language  of  the  Agree- 
ment not  Conclusive. — The  text  is 
quoted  in  Sherburne  v.  Herst,  121 
Fed.  998.  See  Foley  v.  McKeegan, 
4  Iowa  (4  Clarke),  1,  66  Am.  Dec. 
107;  Weedon  v.  American  Bonding 
&  Trust  Co.,  128  N.  C.  69,  38  S.  E. 
255.  The  text  is  cited  in  Zenor  v, 
Pryor,  56  Ind.  App.  222,  106  N.  E. 
746;  Elzey  v.  City  of  Winterset,  172 
Iowa,  643,  154  N.  W.  901;  Bell  v. 
Scranton  Coal  Mines  Co.,  59  Wash. 
659,  110  Pac.  628. 

In  the  following  cases  the  stipu- 
lations were  held  to  be  for  liqui- 
dated damages,  although  the  word 
"penalty"     was     used:      Kunkle     v. 


823 


CONCERNING   PENALTIES    AND    FORFEITURES. 


§440 


ness  of  the  sum  fixed  upon  for  the  doing  or  not  doing  a 

Drew,  97  Mass.  445;  Shute  v.  Taylor,  5  Met.  61;  Wallis  v.  Carpenter,  13 
Allen,  19;  Lynde  v.  Thompson,  2  Allen,  456;  Streeper  v.  Williams,  48 
Pa.  St.  450;  Hatch  v.  Fogarty,  33  N.  Y.  Sup.  Ct.  166;  Hahn  v.  Horst- 
man,  12  Bush,  249;  Yenner  v.  Hammond,  36  Wis.  277  (the  word  "pen- 
alty" used,  but  construed  to  be  liquidated  damages) ;  White  v.  Arlith,  1 
Bond,  319;  Hamaker  v.  Schroers,  49  Mo.  406;  Shute  v.  Hamilton,  3  Daly, 
462;  Gillis  v.  Hall,  7  Phila.  422,  2  Brewst.  342.  See,  also,  the  cases  cited 
in  the  next  succeeding  note.  In  Gushing  v.  Dtew,  97  Mass.  445,  the  rule 
was  thus  stated  by  Chapman,  J.:  "The  tendency  and  preference  of  the 
law  is  to  regard  a  sum  stated  to  be  payable  if  a  contract  is  not  fulfilled 
as  a  penalty,  and  not  as  liquidated  damages.  Yet  courts  endeavor  to 
learn  from  the  subject-matter  of  the  contract,  the  nature  of  the  stipula- 
tions, and  the  surrounding  circumstances,  what  was  the  real  intent  of  the 
parties,  and  are  governed  by  such  intent."  In  Gillis  v.  Hall,  7  Phila.  422, 
2  Brewst.  342,  it  was  said  that  when  a  person  has  bound  himself  in  a 


Wherry,  189  Pa.  St.  198,  69  Am.  St. 
Rep.  802,  42  Atl.  112;  Muse  v. 
Swayne,  70  Tenn.  (2  Lea),  251,  31 
Am.  Rep.  607;  Duffy  v.  Shockey,  11 
Ind.  70,  71  Am.  Dec.  348;  Pastor  v. 
Solomon,  54  N.  Y.  Supp.  575,  25 
Misc.  Eep.  322;  Hardee  v.  Howard, 
33  Ga.  533,  83  Am.  Dec.  176;  Kobin- 
son  V.  Centonary  Fund  &  Preachers 
Aid  Soc,  68  N".  J.  L.  723,  54  Atl. 
416;  In  re  White,  84  L.  T.  594,  50 
Wlkly.  Eep.  81;  Erickson  v.  Green, 
47  Wash.  613,  92  Pac.  449. 

In  the  following  cases  the  stipula- 
tions were  held  to  be  for  liquidated 
damages,  although  the  word  "for- 
feiture" or  "forfeit"  was  used:  Mc- 
Curry  v.  Gibson,  108  Ala.  451,  54 
Am.  St.  Rep.  177,  18  South.  806; 
Sanford  v.  First  Nat.  Bank,  94  Iowa, 
680,  63  N.  W.  459;  Goldman  v.  Gold- 
man, 51  La.  Ann.  761,  25  South.  555; 
Pendleton  v.  Electric  Light  Co. 
(N.  C.)  27  S.  E.  1003;  Pressed  Steel 
Car  Co.  V.  Eastern  R'y  Co.,  121  Fed. 
609;  Dobbs  v.  Turner  (Tex.  Civ. 
App.),  70  S.  W.  458;  Eakin  v.  Scott, 
70  Tex.  442,  7  S.  W.  777;  Hardie 
Tynes  Foundry  &  Mach.  Co.  v.  Glen 


Allen  Oil  Mill  (Miss.),  36  South.  262; 
Barber  Asphalt  Paving  Co.  v.  City  of 
Wabash,  43  Ind.  App.  167,  86  N.  E, 
1034;  Western  Gas  Co.  v.  Dowagiac 
Gas  &  Fuel  Co.,  146  Mich.  119,  10 
Ann.  Cas.  224,  109  N.  W.  29. 

In  the  following  cases  provisions 
were  held  penalties,  although  called 
liquidated  damages  by  the  parties: 
Condon  v.  Kemper,  47  Kan.  126,  13 
L.  R.  A.  671,  27  Pac.  829;  Gay  Mfg. 
Co.  v.  Camp,-  65  Fed.  794,  13  C.  C.  A. 
137,  25  U.  S.  App.  134;  Wilhelm  v. 
Eaves,  21  Or.  194,  14  L.  R.  A.  297,  27 
Pac.  1053;  J.  I.  Case  Threshing  Co. 
v.  Souders,  48  Ind.  App.  503,  96  N.  E. 
177;  Chicago,  B.  &  Q.  R.  Co.  v.  Dock- 
ery,  195  Fed.  221,  115  C.  C.  A.  173; 
Sanders  v.  McKim,  138  Iowa,  122, 
115  N.  W.  917;  Stoner  v.  Shultz,  69 
Wash.  687,  125  Pac.  1026;  Coker  v. 
Brevard,  90  Miss.  64,  43  South.  177; 
Gougar  v.  Buffalo  Specialty  Co.,  26 
Colo.  App.  8,  141  Pac.  511. 

In  Wright  v.  Dobie,  3  Tex.  Civ. 
App.  194,  22  S.  W.  66,  the  word 
"forfeit"  was  used,  and  the  court 
held  that  it  was  for  the  jury  to  say 
whether  the  intent  was  for  a  penalty 


440 


EQUITY    JURISPRUDENCE. 


824 


particular  act — that  is,  the  fact  of    its  being  dispropor- 

certain  sum  lo  do  or  not  to  do  a  certain  thing,  the  court  will  look  at  the 
language  of  the  contract,  the  intention  of  the  parties  as  gathered  from 
all  its  provisions,  the  subject-matter  of  the  contract  and  its  surroundings, 
the  ease  or  difficulty  of  measuring  the  breach  in  damages,  and  the  sum 
stipulated;  and  from  the  whole  decide  whether  equity  and  good  conscience 
require  that  said  sum  shall  be  treated  as  liquidated  damages  or  only  as  a 
penalty.  It  does  not  seem  possible  to  formulate  the  rule  in  any  more 
comprehensive  and  accurate  a  manner  than  this.  In  White  v.  Arlith,  1 
Bond,  319,  it  was  held  that  if  a  sum  stipulated  to  be  paid  on  a  breach  is 
termed  in  the  instrument  a  "penalty,"  it  will  always  be  treated  only  as 
a  penalty;  but  if  it  is  termed  "liquidated  damages,"  it  may  be  treated 
as  a  penalty,  if  that  appears  to  be  the  intent.  This  attempted  distinc- 
tion between  the  effect  of  using  the  word  "penalty,"  and  that  of  using 
the  words  "liquidated  damages,"  is  not  only  unsupported  by  authority, 
but  is  directly  opposed  to  the  whole  cun-ent  of  authority,  English  and 
American. 


or  for  liquidated  damages.  In  Van 
Buren  v.  Degges,  52  U.  S.  (11  How.) 
461,  the  court  said:  "The  term  'for- 
feiture' imports  a  penalty;  it  has  no 
necessary  or  natural  connection  with 
the  measure  or  degree  of  injury 
which  may  result  from  a  breach  of 
contract,  or  from  an  imperfect  per- 
formance. It  implies  an  absolute  in- 
fliction, regardless  of  the  nature  and 
extent  of  the  causes  by  which  it  is 
superinduced.  Unless,  therefore,  it 
shall  have  been  expressly  adopted 
and  declared  by  the  parties  to  be  a 
measure  of  injury  or  compensation, 
it  is  never  taken  as  such  by  courts 
of  justice,  who  leave  it  to  be  en- 
forced where  this  can  be  done  in  its 
real  character,  viz.:  that  of  a  pen- 
alty." In  Smith  v.  Brown,  164 
Mass.  584,  42  N.  E.  101,  there  was 
an  agreement  not  to  engage  in  busi- 
ness "under  a  penalty  of  one  thou- 
sand dollars."  The  court  said: 
"Even  if  the  use  of  that  word  is  not 
conclusive,  it  has  been  declared  by 
this  court  and  by  others  that  very 
strong  evidence  would  be  required  to 


authorize  them  to  say  that  the  par- 
ties' own  words  do  not  express  their 
intention  in  this  respect.  The  in- 
tention to  liquidate  damages  may 
not  prevail  in  all  cases,  but,  if  the 
intent  expressed  is  to  impose  a  pen- 
alty, the  court  cannot  give  the  words 
a  larger  scope."  In  Kilbourne  v, 
Burt  &  Brabb  Lumber  Co.,  23  Ky. 
L.  Eep.  985,  55  L.  R.  A.  275,  64  S.  W. 
631,  the  court  said:  "Wliere  the  word 
'penalty'  is  used,  it  is  generally  con- 
clusive against  its  being  held  liqui- 
dated damages."  In  Iroquois  Fur- 
nace Co.  V.  Wilkin  Mfg.  Co.,  181  111. 
582,  54  N.  E.  987,  the  court  said: 
"The  word  'penalty'  prima  facie  ex- 
cludes the  notion  of  stipulated  dam- 
ages, although  the  use  of  either  the 
word  'penalty'  or  the  words  'liqui- 
dated damages'  is  not  conclusive." 
In  Williams  v.  Vance,  9  S.  C.  (9 
Eich.)  344,  30  Am.  Eep.  26,  the  court 
said:  "When  the  parties  declare  that 
the  sum  or  rate  fixed  shall  be  deemed 
liquidated  damages,  and  the  case  is 
one  in  which  they  are  at  liberty  so 
to    declare,    such    declaration    must 


825 


CONCERNING   PENALTIES    AND   FORFEITURES. 


440 


tioned  in  amount  to  the  damage  which  results  therefrom 
— will  not  of  itself  be  a  sufficient  reason  for  holding  it  to 
be  a  penalty.^  ^ 

§  440,  3  Astley  v.  Weldon,  2  Bos.  &  P.  351 ;  Chilliner  v.  Chilliner,  2 
Ves.  528;  Roy  v.  Duke  of  Beaufort,  2  Atk.  190;  Logan  v.  AVienholt,  1 
Clark  &  F.  611 ;  Clement  v.  Cash,  21  N.  Y.  253 ;  Shiell  v.  MeNitt,  9  Paige, 


stand  unless  inconsistent  with  other 
parts  of  the  same  instrument  or  un- 
reasonable in  itself.  In  inquiring 
whether  it  is  reasonable  it  is  not 
necessary  to  ask  whether  it  is  wise 
or  considerate,  but  whether  it  is  in 
conflict  with  the  principles  and 
practices  that  govern  transactions  of 
a  like  nature."  But  in  Ross  v.  Loe- 
scher,  152  Mich.  386,  125  Am.  St. 
Eep.  418,  116  N.  W.  193,  the  court 
said:  "Courts  will  disregard  the  ex- 
press stipulation  of  the  parties  only 
in  those  cases  where  it  is  obvious 
from  the  contract  before  them  and 
the  whole  subject-matter  that  the 
principle  of  compensation  has  been 
disregarded."  See,  also,  Kaplan  v. 
Gray,  215  Mass.  269,  102  N.  E.  421. 

In  Mayor  etc.  of  Brunswick  v. 
Aetna  Indemnity  Co.,  4  Ga.  App. 
722,  62  S.  E.  475,  it  was  held  that 
the  fact  that  a  bond  was  said  to  be 
in  a  penal  sum,  while  not  control- 
ling, was  evidence  that  it  was  in- 
tended as  a  penalty.  To  the  same 
effect,  Giesecke  v.  CuUerton,  28  111. 
510,  117  N.  E.  777. 

In  Selby  v.  Matson,  137  Iowa,  97, 
14  L.  R.  A.  (N.  S.)  1210,  114  N.  W. 
609,  it  is  said  that  "when  the  stipu- 
lation on  its  face  purports  to  desig- 
nate liquidated  damages,  the  burden 
of  proof  to  show  that  such  was  not 
the  design  in  making  it  is  always 
on  the  party  so  contending." 

That  the  parties  have  used  the 
term  "liquidated  damages"  is  impor- 
tant:  General  Electric  Co.  v.  West- 


inghouse  Electric  &  Mfg.  Co.,  144 
Fed.  458,  and  cases  cited. 

Where  Meaning  is  Doubtful,  the 
stipulation  will  be  construed  as  a 
penalty.  Heatwole  v.  Gorrell,  35 
Kan.  692,  12  Pac.  135;  Wallis  Iron 
Works  V.  Monmouth  Park  Ass'n,  55 
N.  J.  L.  132,  39  Am.  St.  Rep.  626, 
19  L.  R.  A.  456,  26  Atl.  140;  Foley 
V.  McKeegan,  4  Iowa  (4  Clarke),  1, 
66  Am.  Dec.  107;  Johnson  v.  Cook, 
24  Wash.  274,  64  Pac.  729;  Amanda 
Consol.  G.  M.  Co.  v.  People's  M.  & 
M.  Co.,  28  Colo.  251,  64  Pac.  218; 
Day  Bros.  Lumber  Co.  v.  Ison,  23 
Ky.  L.  Rep.  80,  62  S.  W.  516;  Baird 
V.  Tolliver,  25  Tenn.  (6  Humph.) 
186,  44  Am.  Dec.  298;  Wilson  v. 
Mayor,  etc.,  of  Baltimore,  83  Md. 
203,  55  Am.  St.  Rep.  339,  34  Atl. 
774;  Brennan  v.  Clark,  29  Neb.  385, 
45  N.  W.  472;  Iroquois  Furnace  Co. 
V.  Wilkin  Mfg.  Co.,  181  III.  582,  54 
N.  E.  987;  Wilhelm  v.  Eaves,  21 
Or.  194,  14  L.  R.  A.  297,  27  Pac. 
1053;  Gillihan  v.  Rollins,  41  Neb. 
540,  59  N.  W.  893;  Gougar  v.  Buf- 
falo Specialty  Co.,  26  Colo.  App.  8, 
141  Pac.  511;  Zenor  v.  Pryor,  56  Ind. 
App.  222,  106  N.  E.  746;  Kellam  v. 
Hampton,  58  Tex.  Civ.  App.  484,  124 
S.  W.  970;  Miller  v.  Moulton,  77 
Wash.  325,  137  Pac.  491;  Mayor  etc. 
of  Brunswick  v.  Aetna  Indemnity 
Co.,  4  Ga.  App.  722,  62  S.  E.  475. 

§  440,  (f )  Disproportion  of  tLe 
Sum  Fixed  not  Conclusive. — The  text 
is  quoted  in  Cavanaugh  v.  Conway, 
36  R.  I.  571,  90  Atl.  1080.     The  text 


441 


EQUITY    JURISPKUDENCE. 


826 


§  441.  Rules  Determining  Liquidated  Damages  and  Pen- 
alties.— ^^While  it  is  impossible  to  formulate  one  universal 
criterion  by  which  the  question  of  penalty  or  liquidated 
damages  can  be  determined  in  every  instance,  certain  par- 

101;  Dwinel  v.  Brown,  54  Me.  4G8;  Mor^e  v.  Ratliburn,  42  Mo.  594,  97 
Am.  Dec.  359;  Gower  v.  Saltmarsh,  11  Mo.  27;  Peine  v.  Weber,  47  111. 
41 ;  Gamble  v.  Linder,  76  111.  137 ;  Williams  v.  Green,  14  Ark.  313 ;  Hodges 
V.  King,  7  Met.  583,  Still  the  amount  of  the  sum  may  always  be  taken 
into  consideration  as  an  aid  to  the  court  in  determining  the  intention  of 
the  parties;  and  if  it  be  altogether  excessive,  this  may  turn  the  scale  in 
favor  of  declaring  it  intended  as  a  penalty:  Barry  v.  Wisdom,  5  Ohio  St. 
241;  Perkins  v.  Lyman,  11  Mass.  76,  6  Am.  Dec.  158;  Lynde  v.  Thomp- 
son, 2  Allen,  456,  459;  Hodgson  v.  King,  7  Met.  583;  Streeper  v.  Will- 
iams, 48  Pa.  St.  450;  Curry  v.  Larer,  7  Pa.  St.  470,  49  Am.  Dec.  486; 
Colwell  v.  Lawrence,  38  Barb.  643,  38  N.  Y.  71. 


is  supported  in  the  recent  case  of 
Sun  Printing  and  Pub.  Ass'n  v. 
Moore,  183  U.  S.  642,  22  Sup.  Ct.  240. 
The  court  reviewed  a  long  list  of 
authorities,  expressed  disapproval 
of  the  cases  of  Chicago  House- 
Wrecking  Co.  V.  U.  S.,  166  Fed.  385, 
53  L.  R.  A.  122,  45  C.  C.  A.  343,  and 
Gay  Mfg.  Co.  t.  Camp,  65  Fed.  794, 
25  U.  S.  App.  134,  13  C.  C.  A.  137, 
68  Fed.  67,  25  U.  S.  App.  376,  15 
C.  C.  A.  226,  and  announced  its  con- 
clusion as  follows:  "It  may,  we 
think,  fairly  be  stated  that  when  a 
claimed  disproportion  has  been  as- 
serted in  actions  at  law,  it  has 
usually  been  an  excessive  dispropor- 
tion between  the  stipulated  siim  and 
the  possible  damages  resulting  from 
u  trivial  breach  apparent  on  the  face 
of  the  contract,  and  the  question  of 
disproportion  has  been  simply  an 
element  entering  into  the  considera- 
tion of  the  question  of  what  was  the 
intent  of  the  parties,  whether  bona 
fide  to  fix  the  damages,  or  to  stipu- 
late the  payment  of  an  arbitrary 
sum  as  a  penalty,  by  way  of  secur- 
ity."    See,    also,    Taylor    v.    Times 


Newspaper  Co.,  83  Minn.  523,  85  Am. 
St.  Rep.  473,  86  N.  W.  760.  And  see 
Keeble  v.  Keeble,  85  Ala.  552,  5 
South.  149.  In  this  case  it  was  ar- 
gued that  inasmuch  as  it  was  pos- 
sible for  a  breach  to  occur  with  no 
actual  damages,  other  than  nominal, 
the  amount  agreed  upon  should  be 
construed  as  a  penalty.  In  answer, 
the  court  pointed  out  that  such  is 
the  character  of  most  agreements, 
and  held  that  it  could  not  enter  into 
an  investigation  of  the  quantum  of 
damages. 

Where  the  amount  stipulated  for 
is  unreasonable  it  is  evidence  that 
the  parties  did  not  intend  to  provide 
for  compensatory  damages,  and  the 
provision  will  be  held  a  penalty. 
Condon  v.  Kemper,  47  Kan.  126,  13 
L.  R.  A.  671,  27  Pac.  829.  See,  also, 
Iroquois  Furnace  Co.  v.  Wilkin  Mfg. 
Co.,  181  111.  582,  54  N.  E.  987; 
Northwest  Fixture  Co.  v.  Kilboiirne 
&  Clark  Co.  (C.  C.  A.),  128  Fed. 
256;  J.  I.  Case  Threshing  Co.  v.  Sen- 
ders, 48  Ind.  App.  503,  96  N.  E.  177; 
Selby  V.  Matson,  137  Iowa,  97,  14 
L.  R.  A.  (N.  S.)  1210,  114  N.  W.  609. 


827 


CONCERNING   PENALTIES    AND    FORFEITURES. 


§441 


ticular  rules  have  been  well  settled  by  the  decisions,  which 
apply  to  many  important  and  customary  forms  and  kinds  of 
agreements,  although  there  are,  of  course,  numerous  cases 
which  cannot  easily  be  brought  within  the   operation  of 


See,  also,  Cowart  v.  Walter  Connolly 
&  Co.  (Tex.  Civ.  App.),  108  S.  W.  973. 
"Although  a  sum  be  named  as  'liqui- 
dated damages'  the  courts  will  not 
so  treat  it,  unless  it  bear  such  pro- 
portion to  the  actual  damages  that 
it  may  reasonably  be  presumed  to 
have  been  arrived  at  upon  a  fair 
estimation  by  the  parties  of  the  com- 
pensation to  be  paid  for  the  pro- 
spective loss.  If  the  supposed  stipu- 
lation greatly  exceed  the  actual  loss, 
— if  there  be  no  approximation  be- 
tween them,  and  this  be  made  to  ap- 
pear by  the  evidence, — then,  it  seems 
to  us,  and  then  only,  should  the  ac- 
tual damages  be  the  measure  of  re- 
covery"; Collier  v.  Betterton,  87  Tex, 
442,  29  S.  W.  468.  Accordingly,  in 
Wilcox  V.  Walker  (Tex.  Civ.  App.), 
43  S.  W.  579,  where  there  was  a 
stipulation  to  keep  property  insured 
or  pay  a  certain  amount  in  case  of 
fire,  it  was  held  that  the  defendant 
might  show  that  the  property  was  of 
no  value.  In  Weedon  v.  American 
Bonding  &  Trust  Co.,  128  N.  C.  69,  38 
S.  E.  255,  damages  for  delay  in  com- 
pleting a  building  were  fixed  at  $10 
per  day.  The  rental  value  of  the 
building  was  $30  per  month.  It  was 
held  that  the  sum  was  a  penalty,  the 
court  saying  (quoting  from  Ward  v. 
Building  Co.,  125  N.  Y.  230,  26  N.  E. 
256)  that  "when  the  sum  specified  in 
the  contract  as  liquidated  damages  is 
disproportionate  to  the  presumed  or 
probable  damage  or  to  a  readily  as- 
certainable loss,  the  courts  will  treat 
it  as  a  penalty,  and  will  relieve  on 
the  principle  that  the  precise  sum 
was  not  of  the  essence  of  the  con- 


tract, but  was  in  the  nature  of  se- 
curity for  performance."  A  similar 
result  on  similar  facts  was  reached 
in  Cochran  v.  People's  E'y  Co.,  113 
Mo.  359,  21  S.  W.  6;  Jennings  v 
Wilier  (Tex.  Civ.  App.),  32  S.  W. 
24.  In  J.  G.  Wagner  Co.  v.  Cawker, 
112  Wis.  532,  88  N.  W.  532,  t'Ae 
question  arose  over  a  stipulation  for 
liquidated  damages  for  delay.  The 
court  intimated  that  if  the  amount 
were  greatly  disproportionate  to  the 
actual  damage  it  should  be  consid- 
ered a  penalty.  See,  also,  Elzey  v. 
City  of  Wintersett,  172  Iowa,  643, 
154  N.  W.  901  (twenty-five  dollars  a 
day  for  delay  in  completing  contract 
for  street  improvements;  no  show- 
ing of  any  injury  whatever  to  the 
city  by  reason  of  the  delay) ;  Joeckel 
V.  Johnson  (Iowa),  159  N.  W.  672; 
Ward  V.  Haren,  183  Mb.  App.  569, 
167  S.  W.  1064;  Golden  v.  McKim, 
37  Nev.  205,  141  Pac.  676.  Where 
the  amount  is  unreasonable  and  the 
enforcement  would  work  a  hardship, 
the  stipulation  will  be  held  to  be  a 
penalty;  Dennis  v.  Cummins,  3  Johns. 
Cas.  297,  2  Am.  Dec.  160.  In  Gilli- 
han  V.  Eollins,  41  Neb.  540,  59  N.  W. 
893,  the  court  held  that  stipulations 
will  be  held  to  be  for  liquidated  dam- 
ages only  "when  to  do  so  will  no 
more  than  compensate  for  his  loss." 
Ordinarily,  if  at  the  time  the  con- 
tract is  entered  into  the  amount  of 
damage  which  will  be  sustained  by  a 
breach  appears  to  be  uncertain  and 
difficult  of  ascertainment,  the  par- 
ties will  be  allowed  to  stipulate  for 
liquidated  damages.  The  fact  that 
when  the  breach  occurs  the  damage 


§441 


EQUITY   JURISPRUDENCE. 


828 


either  of  them.     The  following  are  the  rules  which  have  thus 
been  established  by  judicial  authority. 

First.  Wherever  the  payment  of  a  smaller  sum  is  secured 
by  a  larger,  the  larger  sum  thus  contracted  for  can  never 
be  treated  as  liquidated  damages,  but  must  always  be  con- 
sidered as  a  penalty.!  ^ 

§  441,  1  Aylett  v.  Dodd,  2  Atk.  239 ;  Astley  v.  Weldon,  2  Bos.  &  P. 
350-354;  Lampman  v.  Cochran,  16  N.  Y.  275;  Clement  v.  Cash,  21  N.  Y. 
253,  260 ;  Bagley  v.  Peddle,  16  N.  Y.  469,  471,  69  Am.  Dec.  713 ;  Dakln  v. 
Williams,  17  Wend.  447,  22  Wend.  401;  Tlernan  v.  Hamman,  16  111.  400. 
The  stipulation  creates  a  penalty  within  this  rule,  whatever  be  the  fonn 
of  the  contract  secured,  if  it  be  in  effect  one  for  the  payment  of  money; 
that  is,  where  it  may  not  in  express  terms  provide  for  the  payment  of 
money,  but  its  performance  results  in  such  payment.  As  examples:  In 
an  agreement  to  stay  the  enforcement  of  a  decree  of  mortgage  foreclosure 
for  a  specified  time,  a  stipulation  to  pay  a  fixed  sum  upon  default  in  per- 
forming the  decree  was  held  to  be  a  penalty:  Kuhn  v.  Meyers,  37  Iowa, 
351;  and  in  an  agreement  to  pay  the  plaintiff's  debts,  and  to  save  him 
harmless  from  any  suit  which  might  be  brought  upon  such  demands,  a 


proves  to  be  less  than  the  estimate 
will  not  vary  the  rule,  unless  the 
difference  is  so  great  as  to  lead  to 
•the  conclusion  that  the  estimate  was 
not  bona  fide:  Baltimore  Bridge  Co. 
V.  United  Rys.  &  Electric  Co.,  125 
Md.  208,  93  Atl.  420.  In  Banta  v. 
Stamford  Motor  Co.,  89  Conn.  51,  92 
Atl.  665,  a  stipulation  for  fifteen 
dollars  a  day  for  delay  in  perform- 
ance of  a  contract  relating  to  a 
motor  boat  was  sustained,  although 
it  appeared  that  the  only  actual  loss 
to  the  owner  was  depriving  him  of 
a  cruise  to  Chesapeake  Bay.  But 
see  The  Colombia,  197  Fed.  661, 
where  the  court  held  that  no  provi- 
sion in  a  contract  for  the  payment 
of  a  fixed  sum  as  damages  will  be 
enforced  in  a  case  where  the  court 
sees  that  no  damage  has  in  fact  been 
sustained. 

§  441,  (a)  The  text  is  quoted  in 
Zenor  v.  Pryor,  56  Ind.  App.  222,  106 
N.  E.  746;  Stoner  v.  Shultz,  69  Wash. 


687,  125  Pae.  1026.  See  Chicago 
House-Wrecking  Co.  v.  U.  S.,  106 
Fed.  385,  53  L.  R.  A.  122,  45  C.  C. 
A.  343;  Brennan  v.  Clark,  29  Neb. 
385,  45  N.  W.  472;  Kilbourue  v.  Burt 
&  Brabb  Lumber  Co.,  23  Ky.  L.  Rep. 
985,  55  L.  R.  A.  275,  64  S.  W.  631; 
Walsh  v.  Curtis,  73  Minn.  254,  76 
N.  W.  52.  A  stipulation  in  a  mort- 
gage that  if  default  is  made  in  the 
payment  of  interest  or  principal  at 
the  times  designated,  the  mortgagors 
will  pay  interest  on  the  principal  at 
the  rate  of  twelve  per  cent  per  an- 
num from  the  date  of  the  note  until 
payment  is  made,  the  rate  of  interest 
in  the  absence  of  such  default  being 
only  seven  per  cent  per  annum,  is  a 
stipulation  for  a  penalty,  and  not 
enforceable  in  equity:  Krutz  v.  Bob- 
bins, 12  W'ash.  7,  50  Am.  St.  Rep. 
871,  28  L.  R.  A.  676,  and  cases  cited, 
40  Pac.  415;  Richardson  v.  Campbell, 
31  Neb.  181,  33  Am.  St.  Rep.  633,  51 
N.   W.   753.     But   see   National  Life 


829 


CONCERNING   PENALTIES    AND    FORFEITURES. 


§44^ 


§  442.     Second.     Where  an  agreement  is  for  the  perform- 
ance or  non-performance  of  only  one  act,  and  there  is  no 

stipulation  to  pay  a  fixed  sum  upon  default  Avas  held  to  be  a  penalty: 
Morris  v.  McCoy,  7  Nev.  399.  The  stipulation  is  held  to  be  a  penalty, 
not  only  when  it  thus  certainly  provides  for  the  payment  of  a  larger 
sum  upon  a  default  in  paying  a  smaller  amount,  but  also  where  it  may 
possibly  lead  to  such  a  result:  Spear  v.  Smith,  1  Denio,  465;  Hoag  v, 
McGinnis,  22  Wend.  163;  Niver  v.  Rossman,  18  Barb.  50;  Gregg  v. 
Crosby,  18  Johns.  219,  226;  Curry  v.  Larer,  7  Pa.  St.  470,  49  Am.  Dec. 
486.  In  Spear  v.  Smith,  1  Denio,  465,  there  was  an  agreement  to  comply 
with  the  decision  of  arbitrators  to  whom  a  controversy  had  been  submitted, 
or  else  to  pay  one  hundred  dollars,  and  the  latter  sum  was  held  to  be  a 
penalty,  because  the  award  might  be  for  the  payment  of  a  sum  of  money, 
as  in  fact  it  was.**  It  is  partly  for  this  reason  that  where  a  contract  con- 
tains several  stipulations,  some  for  the  payment  of  money,  and  others 
for  the  doing  or  not  doing  of  specified  acts,  an  additional  provision  bind- 
ing a  party  to  pay  a  fixed  sum  in  case  of  his  default  in  any  of  these 


Ins.  Co.  v.  Hale  (Okl.),  154  Pac.  536, 
and  cases  cited:  Rvissell  v.  Wright, 
23  S.  D.  338,  121  N.  W.  842.  In 
Goodyear  Shoe  Mach.  Co,  v.  Selz, 
Schwab  &  Co.,  157  111.  186,  41  N.  E. 
625,  a  lessor  agreed  that  "if  the 
rents  and  royalties  due  on  the  first 
day  of  any  month  shall  be  paid  on 
or  before  the  fifteenth  day  of  that 
month,  it  will,  in  consideration 
thereof,  grant  a  discount  of  fifty  per 
cent."  This  was  held  to  provide  for 
a  penalty.  In  Gay  Mfg.  Co.  v.  Camp, 
65  Fed.  794,  13  C.  C.  A.  137,  25  U.  S. 
App.  134,  there  was  an  agreement  for 
stipulated  damages  in  case  of  a  de- 
fault by  a  lessee  in  the  payment  of 
rent.  The  court  held  the  provision  to 
be  a  penalty.  In  Mason  v.  Callender, 
2  Minn.  350,  72  Am.  Dec.  102,  a 
promissory  note  which  provided  for 
a  greater  rate  of  interest  after  ma- 
turity than  before  was  before  the 
court.  It  was  held  that  after  ma- 
turity only  damages  could  be  recov- 
ered, and  that  the  provision  had  the 
effect  of  making  a  larger  sum  due 
upon     failure     to     pay     a     smaller. 


Hence  the  provision  was  held  to  be 
a  penalty.  See,  also,  Gower  v.  Car- 
ter, 3  Iowa  (3  Clarke),  244,  66  Am. 
Dec.  71.  But  see  Close  v.  Riddle,  40 
Or.  592,  91  Am.  St.  Rep.  580,  and 
note,  67  Pac.  932.  In  Morrill  v. 
Weeks,  70  N.  H.  178,  46  Atl.  32,  the 
court  said:  "The  intention  of  the 
parties  is  generally  the  test  to  deter- 
mine whether  a  promise  to  pay  a 
fixed  sum  of  money  for  any  default 
in  the  performance  of  a  contract  is 
in  the  nature  of  a  penalty  or  of 
liquidated  damages.  But  a  promise 
to  pay  a  large  sum  of  money  in  the 
event  of  a  default  in  the  payment  of 
a  much  smaller  sum  is  an  exception 
to  this  rule;  for  the  law  makes  in- 
terest the  measure  of  damages  for 
failure  to  pay  money  when  it  is  due, 
and  will  not  permit  parties  to  avoid 
the  usury  laws  in  this  way.  Such  a 
promise  will  be  treated  as  a  penalty, 
and  not  as  liquidated  damages." 

§  411,  (b)  This  portion  of  the  note 
is  quoted  in  Colonua  Dry  Dock  Co. 
v.  Colonna,  108  Va.  230,  61  S.  E.  770. 


§  442  EQUITY   JURISPRUDENCE.  830 

adequate  means  of  ascertaining  the  precise  damage  which 
may  result  from  a  violation,  the  parties  may,  if  they  please^ 
by  a  separate  clause  of  the  contract,  fix  upon  the  amount 
of  compensation  payable  by  the  defaulting  party  in  case 
of  a  breach;  and  a  stipulation  inserted  for  such  purpose 
will  be  treated  as  one  for  *' liquidated  damages,"  unless 
the  intent  be  clear  that  it  was  designed  to  be  only  a 
penalty.!  ^ 

matters  is  necessarily  a  penalty :  Whitfield  v.  Levy,  35  N.  J.  L.  149 ;  Shiell 
V.  McNitt,  9  Paige,  101,  106;  Niver  v.  Rossman,  18  Barb.  50.  In  Whit- 
field V.  Levy,  35  N.  J.  L.  149,  the  purchaser  of  a  gi-ocery  promised  to 
pay  one  thousand  three  hundred  dollars  as  the  price,  and  the  seller  prom- 
ised not  to  engage  in  the  same  business  for  ten  years,  and  the  contract 
added  that  the  parties  "bound  themselves  to  each  other  under  the  penalty 
of  five  hundred  dollars,  to  be  paid  by  him  who  should  fail  to  carry  out 
this  agreement."  The  five  hundred  dollars  was  held  to  be  a  penalty  as 
to  both  the  parties,  since  it  was  necessarily  so  with  resj^ect  to  the  pur- 
chaser's covenant  to  pay  the  price.  Although  this  rule  with  respect  to 
penalties  intended  as  a  security  for  payment  of  money  is  generally 
adopted  and  enforced  by  courts  of  law  as  well  by  those  of  equity,  yet 
it  seems  that  a  contract  in  express  terms  to  pay  a  larger  sum,  exceeding 
the  interest,  as  compensation  for  delay  in  paying  a  smaller  amount,  may 
be  valid  and  operative  at  law,  when  not  contrary  to  the  statutes  against 
usury:  See  Davis  v.  Hendrie,  1  Mont.  Ter.  499;  Hardee  v.  Howard,  33 
Ga.  533,  83  Am.  Dec.  176;  Sutton  v.  Howard,  33  Ga.  536;  Goldworthy  v. 
Strutt,  1  Ex.  659,  665;  Lynde  v.  Thompson,  2  Allen,  456,  459.  Eveiy 
such  contract  would,  however,  be  relieved  against  in  equity. 

§  442,  1  The  leading  case  under  this  rule  is  Rolfe  v.  Peterson,  2  Brown 
Pari.  C,  Tomlins's  ed.,  436,  where  a  lessee  covenanted  not  to  plow  up  any 

§442,    (a)    This   section   is   quoted  Maney,   16  Wash.   552,  48  Pac.   243. 

in  Erickson    v.  Green,  47  Wasli.  613,  To  provide  quick  transit  for  the  in- 

92    Pac.   449;    and    cited   in   Bilz   v.  habitants  of  a  village:  Peekskill,  S. 

Powell,    50    Colo.    482,    38   L.    R.   A.  C.  &  M.  E.  Co.  v.  Village  of  Peek- 

(N.    S.)    847,   117   Pac.   344.     Provi-  skill,  47  N.   Y.   Supp.   305,   21   App. 

sions  for  damages  for  the  breach  of  Div.  94  (affirmed  59  N,  E.  1128,  165 

the  following  agreements  have  been  N.    Y.    628).     By    a    manufacturing 

held   to   be   liquidated   damages:    To  company,  donee  of  a  free  site  from 

provide  a  theater  for  plaintiff's  the-  the  chamber  of  commerce  of  a  city, 

atrieal  company:  Mawson  v.  Leavitt,  to  maintain  a  pay-roll  of  $50,000  a 

37   N.  Y.  Supp.   1138,  16  Misc.  Eep.  year:    Board    of    Commerce    of    Ann 

289.     To  build  on  land  conveyed  to  Arbor  v.  Security  Trust  Co.,  225  Fed. 

defendant:     Everett     Land    Co.     v.  454,   140   C.   C.   A.  486.     By  a  tele- 


831 


CONCERNING   PENALTIES   AND   FORFEITURES. 


§44- 


§  443.     Third.    Where  an  agreement  contains  provisions 

of  the  ancient  meadow  or  pasture  land,  and  if  he  did  he  was  to  pay  an 
additional  rent  of  five  pounds  per  acre.  This  additional  rent  was  held 
by  the  house  of  lords  to  be  liquidated  damages.     The  same  has  been  held 


phone  company,  not  to  cease  compe- 
tition: City  of  New  Britain  v.  New 
Britain  Tel.  Co.,  74  Conn.  326,  50 
Atl.  881.  To  submit  a  controversy 
to  a  judge  without  service  of  sum- 
mons, etc.:  Pendleton  v.  Electric 
Light  Co.  (N.  C),  27  S.  E.  1003. 
Not  to  sell  a  patent  medicine  at  less 
than  the  regular  price:  Garst  v.  Har- 
ris, 177  Mass.  72,  58  N.  E.  174.  To 
keep  an  account  and  pay  a  certain 
percentage  for  the  rent  of  machines, 
the  breach  being  the  failure  to  keep 
the  account:  Standard  Button  Fast- 
ening Co.  v.  Breed,  163  Mass.  10,  39 
N.  E.  346.  Not  to  publish  a  libel  on 
plaintiff:  Emery  v.  Boyle,  200  Pa.  St. 
249,  49  Atl.  779.  To  employ  plain- 
tiff and  pay  him  a  certain  percent- 
age, the  breach  being  a  discharge: 
Glynn  v.  Moran,  174  Mass.  233,  54 
N.  E.  535.  To  work  for  one  party: 
Fisher  v.  Walsh  (Wis.),  78  N.  W. 
437.  A  contract  for  services  stipu- 
lating that  if  the  employee  shall 
leave  the  service  without  giving  two 
weeks'  previous  notice  of  his  inten- 
tion to  do  so,  he  shall  forfeit  a 
specified  sum,  which  may  be  de- 
ducted from  the  wages  due  him,  is 
valid,  especially  if  the  circumstances 
and  nature  of  the  employment  are 
such  that  it  will  be  difficult  to  calcu- 
late with  any  certainty  the  actual 
loss  resulting  to  the  employer  from 
the  abandonment  of  the  employment 
without  previous  notice:  Tennessee 
Mfg.  Co.  v.  James,  91  Tenn.  154,  30 
Am.  St.  Rep.  865,  15  L.  R.  A.  211,  18 
S.  W.  262.  In  Werner  v.  Finley,  144 
Mo.  App.  551,  129  S.  W.  73,  a  con- 
tract of  employment  for  three  years 


at  sixty  dollars  per  month  provided 
that  in  case  of  breach  by  the  em- 
ployee he  should  pay  ten  dollars  per 
month  for  the  unexpired  term. 
After  one  year  he  left  the  employ- 
ment and  entered  the  service  of  a 
competitor.  It  was  held  that  the 
provision  was  for  liquidated  dam- 
ages. See,  also,  Bilz  v.  Powell,  50 
Colo.  482,  38  L.  R.  A.  (N.  S.)  847, 
117  Pac.  344.  But  see  Schrimpf  v. 
Tennessee  Mfg.  Co.,  86  Tenn.  219,  6 
Am.  St.  Rep.  832,  6  S.  W.  131.  In 
Missouri-Edison  Elect.  Co.  v.  M.  J. 
Steinberg  Hat  &  Fur  Co.,  94  Mo. 
App.  543,  68  S.  W.  383,  plaintiff 
agreed  to  give  defendant  a  discount 
if  defendant  should  use  plaintiff's 
power  for  a  year.  Defendant  broke 
the  contract,  and  plaintiff  sued  to 
recover  the  amount  of  the  discount. 
It  was  held  that  plaintiff  was  en- 
titled to  this  relief.  In  Knox  Rock- 
Blasting  Co.  V.  Grafton  Stone  Co.,  60 
Ohio  St.  361,  60  N.  E.  563,  it  was 
agreed  that  if  defendant  should  con- 
tinue to  use  a  patent  after  the  ter- 
mination of  his  license,  without  ob- 
taining a  new  one,  he  should  pay 
double  the  former  fees  for  the  time 
of  such  user.  This  was  held  to  be 
a  stipulation  for  liquidated  damages. 
In  Keeble  v.  Keeble,  85  Ala.  552,  5 
South.  149,  it  was  held  that  a  stipu- 
lation by  a  business  manager  to 
wholly  abstain  from  the  use  of  in- 
toxicating liquors  was  for  liquidated 
damages.  Section  442,  note  1,  of 
this  work  was  cited  as  authority. 
In  Burley  Tobacco  Society  v.  Gil- 
laspy,  51  Ind.  App.  583,  100  N.  E.  89, 
a    number    of    persons    had    formed 


§443 


EQUITY    JURISPRUDENCE. 


832 


for  the  performance  or  non-performance  of  several  acts  of 

in  other  cases  with  respect  to  similar  covenants  by  lessees:  Woodward  v. 
Gyles,  2  Vern.  119;  Jones  v.  Green,  3  Younj^e  &  J.  298.  This  rule  has 
been  applied  in  many  cases,  where  a  party,  either  in  connection  with  a 


themselves  into  an  association  to 
pool  their  tobacco  crops  and  thus 
raise  the  price.  The  members  bound 
themselves  by  a  provision  for  pay- 
ment of  twenty  per  cent  of  the  crop 
in  case  of  breach.  It  was  held  that 
the  provision  called  for  liquidated 
damages:  Compare  Webster  v.  Bos- 
anquet,  [1912]  A.  C.  394.  But  a 
contrary  result  was  reached  in  a 
similar  case  in  California:  Naka- 
gawa  V.  Okamoto,  164  Cal.  718,  130 
Pac.  707.  In  Gussow  v.  Beineson,  76 
N.  J.  L.  209,  68  Atl.  907,  the  agree- 
ment was  to  enter  into  a  partner- 
ship, but  if  a  partnership  should  not 
be  entered  into,  defendant  was  to 
pay  plaintiff  $500  as  further  com- 
pensation for  his  services.  The 
stipulation  was  held  to  be  for  liqui- 
dated damages.  In  Illinois  Trust 
&  Sav.  Bank  v.  City  of  Burlington, 
79  Kan.  797,  101  Pac.  649,  it  was 
held  that  a  provision  in  a  contract 
stipulating  that  if  a  water  company 
shall  be  temporarily  unable  to  sup- 
ply water,  no  rentals  shall  be  paid 
during  such  period,  and  if  the  dis- 
ability shall  be  the  fault  of  the  com- 
pany, the  rebate  shall  be  for  double 
the  period  of  disability,  was  for 
liquidated  damages.  In  Chicka- 
sawba  R,  Co.  v.  Crigger  (.Jonesboro, 
Lake  City  &  E.  R.  Co.  v.  Crigger), 
83  Ark.  364,  103  S.  W.  1153,  a  rail- 
road agreed  to  build  a  station  on 
certain  land  and  to  transact  usual 
business  there,  and  $600  was  fixed  as 
liquidated  damages.  The  provision 
was  held  valid.  In  general,  see  City 
of  York  V.  York  Rys.  Co.,  229  Pa. 
236,   78    Atl.     128;    Yatsuyanagi    v. 


Shimamura,  59  Wash.  24,  109  Pac. 
282  (breach  of  partnership  agree- 
ment) ;  Herberger  v.  H.  E.  Orr  Co., 
62  Wash.  526,  114  Pac.  178;  Gann  v. 
Ball,  26  Okl.  26,  110  Pac.  1067;  Cox 
V.  Smith,  93  Ark.  371,  137  Am.  St. 
Rep.  89,  125  S.  W,  437  (failure  to 
build  partition  wall). 

In  the  following  cases  the  breaches 
of  the  agreements  were  held  to  be 
such  that  damages  were  easily  ascer- 
tainable, and  therefore  the  stipula- 
tions were  held  to  be  penalties: 
Agreement  between  creditors  to 
grant  an  extension  and  not  to  pur- 
chase stock  of  the  debtor:  Hill  v. 
Wertheimer-Swarts  Shoe  Co.,  150  Mo. 
483,  51  S.  W.  702.  Agreement  to  pay 
a  certain  sum  if  a  lighter  hired  should 
be  lost:  Wilmington  Transp.  Co.  v. 
O'Neil,  98  Cal.  1,  32  Pac.  795. 
Where  the  utmost  liability  is  $1,800, 
a  provision  for  $3,000  damages  is  a 
penalty:  Stoner  v.  Shultz,  69  Wash. 
687,  125  Pac.  1026.  Where  the  con- 
tract relates  to  a  subject  as  to  which 
the  law  has  a  fixed  or  reasonably 
definite  rule  for  ascertainment  of 
damages,  and  the  parties  in  advance 
attempt  to  stipulate  the  amount, 
especially  where  the  amount  is  in 
excess  of  what  the  damages  would 
ordinarily  be  if  estimated  according 
to  the  law's  measure,  the  stipulation 
is  generally  held  to  be  a  penalty: 
Florence  Wagon  Works  v.  Salmon,  8 
Ga.  App.  197,  68  S.  E.  866.  For  mis- 
cellaneous examples,  ?oe  Carey  v. 
Mackey,  82  Me.  516,  17  Am.  St.  Rep. 
500,  9  L.  R.  A.  113,  20  Atl.  84; 
Menges  v.  Milton  Piano  Co.  (Mo.), 
70  S.  W.  250;  Deuninck  v.  West  Gal- 


833 


CONCERNING   PENALTIES   AND   FORFEITURES. 


§443 


different  degrees  of  importance,  and  then  a  certain  sum 

sale  of  bis  stock  in  trade  and  good-will,  or  under  other  circumstances, 
covenants  that  he  will  not  carry  on  his  trade  or  business  within  certain 
limits,  and  adds  a  clause  making  himself  liable  to  pay  a  specified  sura 
upon  any  violation  of  the  covenant;  such  sum  is  liquidated  damages.** 
Green  V;  Price,  13  Mees.  &  W.  695,  16  Mees.  &  W.  354;  Atkins  v.  Kin- 


latin  Irr.  Co.,  28  Mont.  255,  72  Pac. 
618;  Caesar  v.  Eubinson,  174  N.  Y. 
492,  67  N.  E.  58;  Stony  Creek  Lum- 
ber Co.  V.  Fields  (Va.),  45  S.  E. 
797.  Where  it  appears  that  the 
amount  stipulated  for  is  to  be  in 
addition  to  actual  damages,  it  will 
be  construed  to  be  a  penalty.  Meyer 
V.  Estes,  164  Mass.  457,  32  L.  R.  A. 
283,  41  N.  E.  683;  Foote  &  Davies 
Co.  V.  Maloney,  115  Ga.  985,  42  S.  E. 
413. 

§  442,  (b)  Covenant  not  to  Carry 
on  a  Business. — See  McCurry  v.  Gib- 
son, 108  Ala.  451,  54  Am.  St.  E«p. 
177,  18  South.  806;  Franz  v.  Bieler, 
126  Cal.  176,  56  Pac.  249,  58  Pac. 
466;  Potter  v.  Ahrens,  110  Cal.  674, 
43  Pac.  388;  California  Steam  Nav. 
Co,  V.  Wright,  6  Cal.  258,  65  Am. 
Dec.  511;  Duffy  v.  Shockey,  11  Ind. 
70,  71  Am.  Dec.  348;  Miller  v.  El- 
liott, 1  Ind.  (1  Cart.)  484,  50  Am.  Dec. 
475;  Studabaker  v.  White,  31  Ind. 
211,  99  Am,  Dec.  628;  Goldman  v. 
Goldman,  51  La.  Ann.  761,  25  South. 
761;  Holbrook  v.  Tobey,  66  Me.  419, 

22  Am,  Rep.  581;  Dunlop  v.  Gregory, 
10  N.  Y.  (6  Seld.)  241,  61  Am,  Dec, 
746;  Breck  v.  Eingler,  59  Hun,  623, 
13  N,  Y.  Supp.  501;  Kelso  v.  Reid, 
145  Pa,  St,  696,  27  Am.  St.  Rep,  716, 

23  Atl,  323;  Muse  v,  Swayne.  70 
Tenn,  (2  Lea)  251,  31  Am.  Rep, 
607;  Tobler  v.  Austin,  22  Tex.  Civ, 
App.  99,  53  S,  W.  706;  Rucker  v. 
Campbell  (Tex.  Civ.  App.),  79  S.  W. 
627;  Shafer  v,  Sloan,  3  Cal.  App. 
335,  85  Pac.  162;  Schoolniek  v.  Gold, 
89  Conn.  110,  93  Atl,  124;  Merica  v. 

1—53 


Burget,  36  Ind,  App.  453,  75  N.  E, 
1083;  Geiger  v.  Cowley,  146  Mich. 
550,  109  N,  W,  1064;  Orenbaum  Bros, 
V,  Lowell  Bros,  (Tex,  Civ.  App.), 
153  S.  W.  905;  Canady  v.  Knox,  43 
Wash.  567,  86  Pac.  930.  In  Smith  v. 
Brown,  164  Mass,  584,  42  N.  E,  101, 
however,  where  the  stipulation  was 
penal  in  form,  it  was  held  to  be  a 
penalty;  and  in  Wlilkinson  v,  Colley, 
164  Pa,  St,  35,  30  Atl,  286,  35  Wkly, 
Notes  Cas.  177,  26  L.  R.  A.  114, 
where  the  defendant  sought  to  have 
the  stipulation  declared  to  be  for 
liquidated  damages  in  order  to  pre- 
vent the  issuance  of  an  injunction 
and  where  the  amount  stipulated 
was  much  less  than  the  actual  dam- 
age, a  like  result  was  reached.  And 
in  Heatwole  v.  Gorrell,  35  Kan.  692, 
12  Pac.  135,  where  the  defendant 
bound  himself  "in  the  sum  of  $500" 
not  to  engage  in  business,  the  court 
held  that  the  stipulation  was  for  a 
penalty,  saying  that  an  instrument 
containing  such  words  is  always 
prima  facie  penal.  See,  also,  Radloff 
V.  Haase,  196  111.  365,  63  N,  E.  729; 
Moore  v.  Colt,  127  Pa.  St.  289,  14 
Am.  St.  Rep,  845,  18  Atl.  8.  A  stip- 
ulation to  act  for  plaintiff  and  not 
to  violate  the  agreement  "under  a 
penalty  of  five  hundred  dollars"  was 
held  to  be  for  liquidated  damages 
in  Pastor  v,  Solomon,  54  N,  Y.  Supp. 
575,  25  Misc.  Rep.  322.  In  Borley 
V.  McDonald,  69  Vt.  309,  38  Atl.  60, 
an  employee  agreed  not  to  solicit 
insurance  for  others  within  a  certain 
time  after  leaving  plaintiff's  employ. 


§  443  EQUITY   JURTSPRUDENCB.  834 

is  stipulated  to  be  paid  upon  a  violation  of  any  or  of  all 

nier,  4  Ex.  776;  Rawlinson  v.  Clarke,  14  Mees.  &  W,  187;  Galesworthy 
V.  Strutt,  1  Ex.  659;  Streeter  v.  Rush,  25  Cal.  67;  Gushing  v.  Drew,  97 
Mass.  445.  In  the  leading  case  of  this  class  (Green  v.  Price  13  Mees. 
&  W.  695)  defendant  had  covenanted  not  to  carry  on  the  business  of  a 
hair-dresser  or  perfumer  within  sixty  miles  of  London,  and  bound  him- 
self in  the  sum  of  five  thousand  pounds  in  case  of  a  violation.  Having 
violated  the  contract,  he  was  held  liable  in  that  sum,  whether  it  did  or 
did  not  exceed  the  actual  damage  sustained  by  the  plaintiff.  In  Gushing 
V.  Drew,  97  Mass.  445,  the  plaintiff  had  sold  his  business  as  an  express- 
man to  the  defendant  for  six:  hundred  dollars,  and  agreed  not  to  carry 
on  the  same  business  within  specified  limits,  and  if  he  failed  to  observe 
this  agreement  he  was  to  pay  the  defendant  nine  hundred  dollars.  This 
sum  was  held  to  be  liquidated  damages.  The  test  was  stated  by  the  court 
as  follows:  "The  stipulation  is  for  a  simple  thing,  namely,  to  abstain 
from  interference  with  the  business  which  the  plaintiff  had  sold  to  the 
defendant,  and  it  is  difficult  to  ascertain  the  damages  that  may  result 
from  the  breach  of  such  a  contract."  Another,  not  uncommon  instance 
under  this  rule,  in  which  the  sum  is  liquidated  damages,  is  found  in  con- 
tracts for  the  sale  and  purchase  of  land,  where  the  vendor  agrees  to  exe- 
cute a  deed  by  a  specified  day,  or  if  not,  that  he  will  be  liable  to  pay  a 
certain  sum:*  Ghamberlain  v.  Bagley,  11  N.  H.  234;  Durst  v.  Swift, 
11  Tex.  274;  or  the  vendee  agrees  to  accept  the  deed  and  complete 
the  purchase  at  a  day  named,  or  else  that  he  will  pay  a  certain  sum: 
Mundy  v.  Culver,  18  Barb.  336;  Holmes  v.  Holmes,  12  Barb.  137; 
Gammon  v.  Howe,  14  Me.  250;  Williams  v.  Green,  14  Ark.  315;  Yenner 
V.  Hammond,  36  Wis.  277;  or  in  a  contract  for  the  exchange  of  lands, 
the  parties  insert  a  similar  stipulation:  Gibb  v.  Linder,  76  111.  137. 
The  rule  has  been  applied  in  like  manner  to  the  stipulation  in  a  lease 
by  which  the  lessee  is  to  be  liable  in  a  certain  amount  if  he  violates 
some  single  specified  covenant  on  his  part;  as  where  a  lessee  covenanted 

and  agreed  "to  forfeit  and  pay"  a  agreement  called  for  liquidated  dam- 
certain  sum  as  liquidated  damages  ages.  In  general,  see  Selby  v.  Mat- 
in case  of  breach.  The  court  held  son,  137  Iowa,  97,  14  L.  R.  A.  (N.  S.) 
this  to  be  a  provision  for  liquidated  1210,  114  N.  W.  609. 
damages.  Penalties. — Agreement  to  deliver 
§  442,  (c)  Transfer  of  Land — Liqui-  possession  of  land:  Eva  v.  McMa- 
dated  Damages. — In  Lorins  v.  Ab-  hon,  77  Cal.  467,  19  Pac.  872.  Agree- 
bott,  49  Neb.  214,  68  N.  W.  486,  it  ment  to  buy  land:  Monroe  v.  South 
was  agreed  that  if  defendant  should  (Tex.  Civ.  App.),  64  S.  W.  1014. 
fail  to  convey  certain  property  to  Agreement  to  quitclaim  a  mining  lo- 
the  plaintiff,  the  latter  was  to  have  cation  if  plaintiff  should  secure  a 
the  use  and  control  of  the  premises  patent:  O'Keefe  v.  Dyer,  20  Mont, 
for  one  year.     It  was  held  that  the  477,  52  Pac.  196. 


835 


CONCERNING   PENALTIES    AND    FORFEITURES. 


§443 


such  provisions,  and  the  sum  will  be  in  some  instances 

that  he  would  not,  before  a  day  named,  negotiate  for,  or  accept,  or  be 
interested  in  any  lease  of  certain  premises,  except  from  the  plaintiff, 
under  a  forfeiture  of  ten  thousand  dollars,  and  this  was  held  to  be  liqui- 
dated damages,  so  that  defendant  was  liable  for  that  amount :  «*  Smith 
V.  Coe,  33  N.  Y.  Sup.  Ct.  480;  and  where  a  lessee  stipulated  to  pay  five 
hundred  dollars  if  he  failed  to  surrender  up  the  premises  by  a  certain 
day:  Peine  v.  Weber,  47  111.  41.  The  following  are  further  examples  of 
the  rule,  the  certain  sum  of  money  stipulated  to  be  paid  for  a  violation 
of  the  main  agreement  being  in  each  case  liquidated  damages.  In  a  build- 
ing contract  containing  clauses  fixing  the  days  for  completing  various 
parts  of  the  work,  a  stipulation  that  for  any  failure  by  the  builder  to 
comply  with  these  provisions  and  to  finish  the  work  as  agreed,  the  em- 
ployer might  claim  compensation  at  the  rate  of  ten  dollars  per  day  for 
every  day  of  such  detention :  ®  O'Donnell  v.  Rosenberg,  14  Abb.  Pr.,  N.  S., 
59;  and  in  a  contract  to  furnish  a  coal  company  all  the  timber  needed 


§  442,  (d)  Agreements  Between 
Lessor  and  Lessee — Liquidated  Dam- 
ages.— By  a  lessor,  to  lease  real  prop- 
erty: Englehardt  v.  Batla  (Tex.  Civ. 
App.),  31  S.  W.  324,  40  S.  W.  150. 
Not  to  oust  a  tenant  before  the  ter- 
mination of  his  lease:  Guerin  v. 
Stacy,  175  Mass.  595,  56  N.  E.  892. 
Not  to  hold  over  after  expiration  of 
tenancy:  Poppers  v.  Meagher,  184 
111.  192,  35  N.  E.  805.  By  a  lessee 
under  a  coal  lease,  to  mine  not  less 
than  a  certain  number  of  tons  per 
year  and  pay  a  royalty  thereon: 
Martin  v.  Berwind-White  Coal  Min. 
Co.,  114  Fed.  553.  By  lessee  under 
oil  lease  to  complete  three  wells 
within  twelve  months:  Davidson  v. 
Hughes,  76  Kan.  247,  91  Pac.  913. 
In  Borghuis  v.  Schultz,  119  Minn.  87, 
137  N.  W.  201,  a  provision  in  a  con- 
tract that  $200  should  be  forfeited 
in  the  event  that  a  lessor  should  lease 
stores  in  a  building  to  another  mer- 
cantile firm  within  a  year  was  held 
to    provide    for   liquidated   damages. 

Penalties. — Agreement  by  tenant 
to  pay  a  certain  sum  in  ease  he 
should  be   evicted  for  non-payment 


of  rent:  Jack  v.  Sinsheimer,  125  Cal. 
563,  58  Pac.  130. 

§  442,  (e)  Building  Contracts.— If 
the  amount  of  damage  caused  by  de- 
lay is  uncertain,  the  parties  are 
allowed  to  stipulate  for  a  fixed 
amount:  Texas,  etc.,  R'y  Co.  v.  Rust, 
19  Fed.  239;  Lincoln  v.  Little  Rock 
Granite  Co.,  56  Ark.  405,  19  S.  W. 
1056;  Young  v.  Gaunt,  69  Ark.  104, 
61  S.  W.  372;  Lawrence  County  v. 
Stewart  Bros.  (Ark.),  81  S.  W.  1059; 
De  Graff,  Vrieling  &  Co.  v.  Wick- 
ham,  89  Iowa,  720,  52  N.  W.  503; 
McKee  v.  Rapp,  35  N.  Y.  Supp.  175; 
Hutton  Bros.  v.  Gordon,  2  Misc.  Rep. 
267,  23  N.  Y.  Supp.  770;  Ward  v. 
Hudson  River  Bldg.  Co.,  125  N.  Y. 
230,  26  N.  E.  256;  White  v.  School 
Dist.  of  Braddock  Borough,  159  Pa. 
St.  201,  28  Atl.  136;  Carter  &  Co.  v. 
Kaufman  (S.  C),  45  S.  E.  1017; 
Mills  V.  Paul  (Tex.  Civ.  App.),  30 
S.  W.  558;  Brown  Iron  Co.  v.  Nor- 
wood (Tex.  Civ.  App.),  69  S.  W.  253; 
Drumheller  v.  American  Surety  Co., 
30  Wash.  530,  71  Pac.  25;  Chapman 
Decorative  Co.  v.  Security  Mutual 
Life  Ins.  Co.,  149  Fed.  189,  79  C.  C. 


§443 


EQUITY    JURISPRUDENCE. 


836 


too  large  and  in  others  too  small  a  compensation  for  the 

for  their  mine  during  a  year,  to  be  paid  for  at  the  rate  of  eighteen  cents 
on  each  ton  of  all  the  coal  mined  during  the  year,  but  if  the  amount 
mined  during  the  year  should  not  equal  seventy-live  thousand  tons,  then 
the  company  were  "to  pay  the  difference  between  the  amount  mined  and 


A.  137;  Caldwell  v.  Schmulbach,  175 
Fed.  429;  Dean  v.  Connecticut  To- 
bacco Corp.,  88  Conn.  619,  92  All. 
408;  Stratton  v.  Fike,  166  Ala.  203, 
51  South.  874;  Parker-Washington 
Co.  V.  City  of  Chicago,  267  111.  136, 
Ann.  Cas.  1916C,  337,  107  N.  E.  872; 
St.  Louis  &  S.  F.  R.  Co.  v.  Gaba,  78 
Kan.  432,  97  Pac.  435;  Western  Gas 
Con.  Co.  V.  Dowagiac  Gas  &  Fuel 
Co.,  146  Mich.  119,  10  Ann.  Cas.  224, 
109  N.  W.  29;  Thompson  v.  St. 
Charles  County,  227  Mo.  220,  126 
S.  W.  1044;  Mosler  Safe  Co.  v. 
Maiden  Lane  Safe  Deposit  Co.,  199 
N.  Y.  479,  37  L.  B.  A.  (N.  S.)  363, 
93  N".  E.  81;  Strode  v.  Smith,  66  Or. 
163,  131  Pac.  1032;  Crawford  v. 
Heatwole,  110  Va.  358,  34  L.  R.  A. 
(N.  S.)  587,  66  S.  E.  46;  Erickson  v. 
Green,  47  Wash.  613,  92  Pac.  449. 
In  Charleston  Lumber  Co.  v.  Fried- 
man, 64  W.  Va.  151,  61  S.  E.  815,  a 
provision  for  damages  of  ten  dollars 
per  day  for  delay  in  construction  of 
a  store  was  sustained.  The  court 
held  that  while  the  rental  value  may 
be  the  measure  of  damages  for  de- 
lay in  construction  of  a  dwelling,  the 
court  may  consider  the  use  intended 
in  saying  whether  damages  can  be 
easily  measured.  See,  also,  United 
Surety  Co.  v.  Summers,  110  Md.  95, 
72  Atl.  775,  where  damages  were 
difficult  to  estimate  because  the 
building  was  to  be  used  as  a  store 
for  a  growing  business.  The  con- 
tract provided  a  bonus  for  early 
completion,  and  the  court  held  that 
it  should  be  given  mutuality  of  in- 
terpretation.    Such  provisions  in  the 


following    contracts   have   been   sus- 
tained: 

To  build  a  public  bridge. — Malone 
V.  City  of  Philadelphia,  147  Pa.  St. 
416,  23  Atl.  628,  29  Wkly.  Notes  Cas. 
251.  To  build  a  public  building. — 
Heard  v.  Dooly  County,  100  Ga.  619, 
28  S.  E.  986  (court  house);  Terrier 
V.  Knox  County  (Tex.  Civ.  App.),  33 
S.  W.  896;  Harris  County  v.  Donald- 
son, 20  Tex.  Civ.  App.  9,  48  S.  W. 
791  (furnishing  a  court  room) ; 
Brooks  V.  City  of  Wichita,  114  Fed. 
297,  52  C.  C.  A.  209.  To  perform 
public  work. — Thorn  &  Hunkins 
Lime  &  Cement  Co.  v.  Citizens' 
Bank,  158  Mb.  172,  59  S.  W.  109 
(construction  of  sewer);  Hipp  v. 
City  of  Houston,  30  Tex.  Civ.  App. 
573,  71  S.  W.  39  (paving  streets). 
To  construct  a  mill  or  factory. — Hen- 
nessy  v.  Metzger,  152  111.  505,  43 
Am.  St.  Rep.  267,  38  N.  E.  1058 
(mill);  Curtis  v.  Van  Bergh,  161 
N.  y.  47,  55  N.  E.  398  (factory). 
To  erect  a  church. — Bird  v.  Rector, 
etc.,  of  St.  .John's  Episcopal  Church, 
154  Ind.  138,  56  N.  E.  129.  Miscel- 
laneous. — Manistee  Iron  Works  Co. 
V.  Shores  Lumber  Co.,  92  Wis.  21,  65 
N.  W.  863  (refitting  a  barge);  Kil- 
bourne  v.  Burt  &  Brabb  Lumber  Co., 
23  Ky.  L.  Rep.  985,  55  L.  R.  A.  275, 
64  S.  W.  631  (delivery  of  logs); 
Illinois  Cent.  R.  R.  Co.  v.  Southern 
Seating  &  Cabinet  Co.,  104  Tenn. 
568,  78  Am.  St.  Rep.  933,  50  L.  R.  A. 
729,  58  S.  W.  303  (delivery  of 
church  pews) ;  Hardie  Tynes  Foun- 
dry Co.  V.  Glen  Allen  Oil  Mill 
(Miss.),  36  South.  262   (delay  in  de- 


837 


CONCERNING    PENALTIES    AND    FORFEITURES. 


§443 


injury  thereby  occasioned,  that  sum  is  to  be  treated  as  a 

seventy-five  thousand  tons,  at  a  rate  of  eighteen  cents  per  ton";  this 
eighteen  cents  per  ton  on  the  difference,  etc.,  was  held  liquidated  dam- 
ages :  Wolf  Creek,  etc.,  Co.  v.  Schultz,  71  Pa.  St.  180 ;  and  see  a  similar 
conti-act  in  Powell  v.  Burroughs,  54  Pa.  St.  329,  336;   an  agreement  to 


livering  engine) ;  Baltimore  Bridge 
Co.  V.  United  Rys.  &  Electric  Co., 
125  Md.  208,  93  Atl.  420;  Winston  v. 
City  of  Pittsfield,  221  Mass.  356,  108 
N.  E.  1038  (provision  for  seventy- 
five  dollars  per  day  for  delay  in  con- 
struction of  reservoir) ;  Barber  As- 
phalt Pav.  Co.  V.  City  of  Wabash,  43 
Ind.  App.  167,  86  N.  E.  1034;  Mayor 
etc.  of  City  of  Washington  v.  Poto- 
mac Engineering  &  Con.  Co.,  132  Ga. 
849,  65  S.  E.  80  (delay  in  construc- 
tion of  waterworks) ;  Tilton  v.  Mc- 
Laughlin, 83  N.  J.  L.  107,  84  Atl. 
1044  (contract  to  do  grading); 
Mayor  etc.  of  Jersey  City  v.  Flynn, 
74  N.  J.  Eq.  104,  70  Atl.  497  (dam- 
ages of  $500i  per  day  to  be  paid  for 
delay  in  construction  of  reservoir). 
In  United  States  v.  Bethlehem  Steel 
Co.,  205  U.  S.  105,  51  L,  Ed.  731,  27 
Sup.  Ct.  450,  the  government  called 
for  bids  for  gun  carriages.  Defend- 
ant put  in  two  bids,  based  on  time 
of  delivery,  the  bid  for  early  de- 
livery being  the  higher.  This  latter 
bid  was  accepted.  The  contract  con- 
tained a  provision  for  a  deduction  of 
a  certain  amount  per  day  for  delay, 
equivalent  to  the  difference  between 
the  short  and  long  time  for  delivery. 
The  provision  was  held  to  call  for 
liquidated  damages.  Where  a  build- 
ing is  being  constructed  for  a  partic- 
ular use,  and  it  would  be  impossible 
to  estimate  the  value  of  that  use 
correctly,  a  provision  against  delay 
will  bo  sustained,  although  the  build- 
ing may  have  some  ascertainable 
value  for  other  purposes.  Such  is 
the  case  in  a  contract  for  the   con- 


struction of  a  home  for  aged  men: 
Kelly  V.  Fejervary  (Iowa),  78  N.  W. 
828.  In  Reichenbach  v.  Sage,  13 
Wash.  364,  52  Am.  St.  Rep.  51,  43 
Pac.  354,  such  a  provision  in  a  con- 
tract for  the  construction  of  a  resi- 
dence was  upheld.  The  court  said: 
"Values  of  rents  are  fluctuating,  and 
dwelling-houses  of  the  character  and 
description  of  this  one  are  ordinarily 
not  built  for  rent  at  all,  but  for  the 
convenience  and  comfort  of  the  own- 
ers; and,  inasmuch  as  the  parties 
saw  fit  to  settle  in  advance  the  ques- 
tion of  damages,  and  it  seems  to  be 
on  an  equitable  basis,  we  do '  not 
feel  justified  in  disturbing  that  con- 
tract, and  holding  that  it  was  a  con- 
tract which  the  parties  had  no  right 
to  make."  If  the  rental  value  is  a 
proper  measure  of  damage  the  pro- 
vision, in  some  jurisdictions,  is  held 
to  be  a  penalty:  Patent  Brick  Co.  v. 
Moore,  75  Cal.  205,  16  Pac.  890; 
Brennan  v.  Clark,  29  Neb.  385,  45 
N.  W.  472.  But  the  party  who  is 
maintaining  that  a  provision  is  a 
penalty  because  there  is  an  ascer- 
tained rental  value  must  show  what 
the  rental  value  is:  De  Graff,  Vriel- 
ing  &  Co.  V.  Wickham,  89  Iowa,  720, 
52  N.  W.  503.  It  is  quite  frequently 
stated  that  the  amount  agreed  upon 
must  not  be  unreasonable  and  out  of 
proportion  to  the  probable  damages. 
The  rule  is  well  stated  in  Collier  v. 
Betterton,  87  Tex.  440,  29  S.  W.  467: 
"Therefore  the  principle  would  seem 
to  be  that,  although  a  sum  be  named 
as  'liquidated  damages,'  the  courts 
will  not  so   treat  it,  unless  it  bear 


§443 


EQUITY    JURISPRUDENCE. 


838 


penalty,  and  not  as  liquidated  damages.*    This  rule  lias 

improve  land  on  which  the  other  party  has  a  mortgage  or  lien:  Pearson 
V.  Williams,  24  Wend.  246,  26  Wend.  630;  an  agreement  guaranteeing 
the  validity  of  a  patent  right:  Brewster  v.  Edgerly,  13  N.  H.  275;  an 
agreement  to  perform  certain  work  and  lahor,  or  to  furnish  certain  mate- 


such  proportion  to  the  actual  dam- 
ages that  it  may  reasonably  be  pre- 
sumed to  have  been  arrived  at  upon 
a  fair  estimation  by  the  parties  of 
the  compensation  to  be  paid  for  the 
prospective  loss.  If  the  supposed 
stipulation  greatly  exceed  the  actual 
loss,  if  there  be  no  approximation 
between  them,  and  this  be  made  to 
appear  by  the  evidence,  then,  it 
seems  to  us,  and  then  only,  should 
the  actual  damages  be  the  measure 
of  the  recovery."  See,  also,  Mills  v. 
Paul  (Tex.  Civ.  App.),  30  S.  W.  558. 
In  the  following  cases  it  was  held 
that  the  amounts  stipulated  for  were 
reasonable:  "Ward  v.  Hudson  Eiver 
Bldg.  Co.,  125  N.  y.  230,  26  N.  E. 
256;  Curtis  v.  Van  Bergh,  161  N.  T. 
47,  55  N,  E.  398;  Bird  v.  Eector, 
etc.,  of  St.  John's  Episcopal  Church, 
154  Ind.  138,  56  N.  E.  129;  De  Graff, 
Vrieling  &  Co.  v.  Wickham,  89  Iowa, 
720,  52  N.  W.  503;  Heard  v.  Dooly 
County,  101  Ga.  619,  28  S.  E.  986; 
Lincoln  v.  Little  Rock  Granite  Co., 
56  Ark.  405,  19  S.  W.  1056;  Thorn 
&  Hunkins  Lime  &  Cement  Co.  v. 
Citizens'    Bank,     158     Mo.     172,    59 

5.  W.  109.  But  in  Cochran  v.  Peo- 
ple's R'y  Co.,  113  Mo.  359,  21  S.  W. 

6,  the  amount  stipulated  for  was 
held  to  be  so  disproportionate  to  the 
actual  damage  as  to  be  a  penalty. 
See,  also,  Weedon  v.  American 
Bonding  &  Trust  Co.,  38  S.  E.  255, 
128  N.  C.  69;  Cochran  v.  People's 
R'y  Co.,  113  Mo.  359,  21  S.  W.  6; 
Jennings  v.  Wilier  (Tex.  Civ.  App.), 
32  S.  W.  24:  J.  G.  Wagner  Co.  v. 
Cawker,  112  Wis.  532,  88  N.  W.  532; 


Lee  v.  Carroll  Normal  School  Co. 
(Neb.),  96  N.  W.  65;  Coen  &  Con- 
way V.  Birchard  (Iowa),  100  N.  W, 
48.  See,  also,  O'Brien  v.  Illinoia 
Surety  Co.,  203  Fed.  436,  121  C.  C. 
A.  546;  Henderson-Boyd  Lumber  Co. 
V.  Cook,  149  Ala.  226,  42  South.  838; 
Ward  V.  Haren,  183  Mo.  App.  569, 
167  S.  W.  1064;  Golden  v.  McKim, 
37  Nev.  205,  141  Pae.  676;  First 
Nat.  Bank  v.  Smith  (Tex.  Civ. 
App.),  160  S.  W.  311.  For  a  dis- 
cussion of  the  general  application  of 
the  principles  here  laid  down,  see 
§  440,  note.     In  Willis  v.  Webster,  1 

§  443,  (a)  The  text  is  quoted  with 
approval  in  Sledge  v.  Arcadia  Or- 
chard Co.,  77  Wash.  477,  137  Pac. 
105.  This  language  is  quoted  but 
held  inapplicable  because  of  statute 
in  Los  Angeles  Olive  Growers'  Ass'n 
V.  Pacific  Surety  Co.,  24  Cal.  App. 
95,  140  Pac.  295.  Section  1671  of 
the  California  Civil  Code  provides: 
"The  parties  to  a  contract  may 
agree  therein  upon  an  amount  which 
shall  be  presumed  to  be  the  amount 
of  damage  sustained  by  a  breach 
thereof,  when,  from  the  nature  of 
the  case,  it  would  be  impracticable 
or  extremely  difficult  to  fix  the 
actual  damage."  It  was  held  that 
an  allegation  "that  it  would  be  and 
was  and  is  impracticable  or  ex- 
tremely difficult  to  fix  the  actual 
damages  suffered  by  the  plaintiff  by 
reason  of  said  breach,  to  wit,  the 
abandonment  by  the  said  Tajiri  of 
the  said  contract,"  was  sufficient  to 
bring  the  case  within  the  statute. 


839  CONCERNING   PENALTIES    AND    FORFEITURES.  §  443 

been  laid  down  in  a  somewhat  different  form,  as  follows: 

rials,  within  a  specified  time :  *  Curtis  v.  Brewer,  17  Pick.  513 ;  Faunce  v. 
Burke,  19  N.  J.  L.  469,  55  Am.  Dec.  519 ;  an  agreement  for  the  punctual 
payments  of  an  annuity:  Berrikott  v.  Traphagen,  39  Wis.  220.  In  apply- 
ing this  second  rule  of  the  text,  it  is  important  to  observe  that  a  contract 
may  come  within  its  scope  and  operation,  which  includes  various  par- 
ticulars differing  in  kind  and  importance,  provided  they  are  in  effect  one; 
all  taken  together  only  make  up  one  whole,  the  violation  of  which  is  to 
be  compensated  by  the  fixed  sum.  In  other  words,  a  contract  of  this 
kind  does  not  necessarily  fall  under  the  third  rule  given  in  the  text;  but 
the  sum  made  payable  may  be  liquidated  damages.  The  intention  of  the 
parties,  however,  as  ascertained  from  the  whole  instrument,  would  guide 
the  court :  Clement  v.  Cash,  21  N.  Y.  253 ;  Bagley  v.  Peddie,  16  N.  Y.  470, 
69  Am.  Dec.  713;  Cotheal  v.  Talmage,  9  N.  Y.  551,  61  Am.  Dec.  716; 
Leary  v.  Laflin,  101  Mass.  334.  In  Clement  v.  Cash,  21  N.  Y.  253, 
Wright,  J.,  applied  the  rule  as  follows:  "The  contract  in  question,  in- 
legal  effect,  provided  but  for  the  performance  of  a  single  act  on  each  side, 
and  at  the  same  period  of  time,  viz.,  the  execution  and  delivery  of  a  deed 
of  the  land  by  the  defendant,  and  payment  therefor  by  the  plaintiff. 
That  the  defendant  agreed  to  receive  in  payment  for  his  deed,  and  the 
plaintiff  to  pay  simultaneously  with  its  delivery,  the  consideration  in 
money  and  other  property,  cannot  divest  what  was  to  be  done  of  the 
character  of  a  single  transaction.  If  the  defendant  failed  to  convey,  or 
the  plaintiff  to  make  payment  in  the  way  covenanted,  there  was  a  total 
non-performance.  The  consideration  to  be  paid  was  nine  thousand  dol- 
lars, of  which  four  thousand  was  to  be  in  cash,  and  five  thousand  dollars 
in  securities,  the  cash  and  transfers  of  the  securities  to  be  passed  over 
to  the  defendant  on  receipt  of  the  deed."  In  Cotheal  v.  Talmage,  9  N.  Y. 
551,  61  Am.  Dec.  716,  the  defendant  and  others  had  severally  covenanted 
that  they  would  diligently  devote  themselves  to  obtaining  gold  and  other 
precious  metals  by  mining  in  California,  under  regulations  specified  in 
the  agreement;  that  a  certain  portion  of  the  earnings  of  each  should  be 
paid  to  the  plaintiff;  and  that  any  of  them  who  failed  to  keep  his 
engagement  should  pay  five  hundred  dollars.     The  defendant  had  violated 

App.  Div.  301,  37  N.  Y.  Supp.  354,  §  442,  (f )  To  Perform  Work  Within 
it  was  held  that  where  the  owner  is  a  Certain  Time — Liquidated  Dam- 
responsible  for  part  of  the  delay,  he  ages. — Agreement  to  fulfill  tbe  terms 
is  not  entitled  to  liquidated  dam-  of  a  franchise  and  have  an  electric 
ages,  for  they  cannot  be  appor-  light  plant  in  operation  by  a  certain 
tioned.  And  see,  to  the  same  eiFect,  time:  City  of  Salem  v.  Anson,  40  Or. 
United  States  v.  United  Engineer-  339,  56  L.  R.  A.  169,  67  Pac.  190. 
ing  &  Construction  Co.,  234  U.  S.  236,  See,  also,  City  of  Marshall  v.  Ad- 
58  L.  Ed.  1294,  34  Sup.  Ct.  843.  kins,    60    Tex.    Civ.    App.    336,    127 


§  443  EQUITY    JURISPRUDENCE.  840 

"Where  the  agreement  contains  provisions  for  the  perform- 

tbe  agreement  by  absenting  himself  from  the  mining  district,  and  refus- 
ing to  devote  himself  to  the  search  for  gold.  The  five  hundred  dollars 
was  held  to  be  liquidated  damages,  since  all  the  particulars  agreed  to  be 
done  were  not  independent  stipulations,  but  together  constituted  a  single 
undertaking  which  the  defendant  was  bound  to  perform.  In  Leary  v. 
Laflin,  101  ^Mass.  334,  the  lessee  of  a  livery-stable  bound  himself  for 
the  pajnnent  of  one  thousand  dollars,  if  he,  the  lessee,  "should  not  keep 
the  stable  during  the  demised  term  in  a  manner  as  satisfactory  to  all 
reasonable  parties  as  the  lessor  had  done,  and  at  the  end  of  the  term  sur- 
render said  premises  and  good-will  in  as  good  repute  and  run  of  custom 
as  now  thei'eto  pertain" ;  and  the  one  thousand  dollars  was  on  the  same 
ground  held  to  be  liquidated  damages. 

Does  this  second  rule  of  the  text  include  m  its  operation  contracts  for 
the  purchase  and  sale  of  goods  and  chattels  or  securities?  It  has  been 
.said  that  it  does  not,  and  that  a  stipulation  to  pay  a  fixed  sum  on  the 
violation  of  such  a  contract  must  necessarily  be  a  penalty,  since  the  legal 
measure  of  damages  can  always  be  exactly  ascertained,  being  in  fact  pre- 
scribed by  the  law,  namely,  the  difference  between  the  market  price  and 
the  price  agreed  to  be  paid:  Jemmison  v.  Gray,  29  Iowa,  537;  Lee  v. 
Overstreet,  44  Ga.  507 ;  Shreve  v.  Brereton,  51  Pa.  St.  175,  186 ;  Burr  v. 
Todd,  41  Pa.  St.  209 ;  Taylor  v.  The  Marcella,  1  Woods,  302.  It  is  plain 
that  there  are  many  cases  in  respect  of  which  this  reasoning  is  sound  and 
this  conclusion  is  just.  It  is  equally  plain  that  there  is  another  class  of 
cases  to  which  neither  this  reasoning  nor  conclusion  can  apply.  In  many 
contracts  for  the  purchase  and  sale  of  personal  property,  there  is  no  such 
means  of  accurately  measuring  the  damages  which  result  from  a  viola- 
tion. If  the  agreement  is  for  the  sale  generally  of  things  of  a  certain 
kind  or  description,  on  a  default  the  vendee  can,  as  a  rule,  go  into  the 
market  and  purchase  other  articles  answering  to  the  description;  the 
measure  of  his  loss  is  then  fixed  by  the  law  at  the  difference  between  the 
market  price  which  he  pays,  and  the  agreed  price;  and  any  certain  sum 
stipulated  to  be  paid  him  by  way  of  compensation  would  be  a  penalty. 

S.   W.   1148;   City   of  York   v.  York  company    should    pay    fifty    dollars 

Eys.  Co.,  229  Pa.  236,  78  Atl.  128.  per    month    rent    until    the    tracks 

Penalties. — Agreement     to     repair  were   removed.     In   case    they   were 

fire  hydrants  within  a  certain  time:  not     removed     within     six     months. 

Light,  Heat  &  Water  Co.  v.  City  of  rent  was  to  be  increased  twenty-five 

Jackson,  73  Miss.  598,  19  South.  771.  dollars    per    month,    and    a    like    in- 

In  Muehlbach  v.  Missouri  &  K.  I.  crease  was   to   accrue   each   succeed- 

R'y    Co.,    166    Mo.    App.     305,     148  ing   period   of   six   months   until   re- 

S.   W.   453,   a   contract  for   removal  moval.     The    provision    was    held    a 

of    tracks    was    drawn   in    the    form  penalty. 
of    a   lease,    and   provided   that    the 


841 


CONCEENING    PENALTIES    AND    FORFEITURES. 


§443 


ance  or  non-performance  of  acts  which  are  not  measurable 

But  where  the  agreement  is  for  the  sale  and  delivery  of  certain  specified 
things,  there  may  not  be  any  mode  of  ascertaining  the  amount  of  loss 
resulting  from  a  non-performance,  and  the  certain  sum  fixed  upon  by  the 
contract  may  be  liquidated  damages,  and  not  a  penalty.  Tliis  would 
clearly  be  so  in  all  those  contracts  for  the  delivery  of  personal  property, 
which  a  court  of  equity  would  specifically  enforce:  Lynde  v.  Thompson, 
2  Allen,  460,  per  Bigelow,  C.  J.;  Gammon  v.  Howe,  14  Me.  250;  Cham- 
berlain V.  Bagley,  11  N.  H.  234;  Mead  v.  Wheeler,  13  N.  H.  351;  Tingiey 
V.  Cutler,  7  Conn.  291;  Shiell  v.  McNitt,  9  Paige,  101,  103;  Clement  v. 
Cash,  21  N.  Y.  253;  Knapp  v.  Maltby,  13  Wend.  587;  Streeper  v.  Will- 
iams, 48  Pa.  St.  450;  Hise  v.  Foster,  17  Iowa,  23;  Morse  v.  Rathburn, 
42  Mo.  594,  97  Am.  Dec.  359;  Williams  v.  Green,  14  Ark.  315,  327.  If, 
however,  the  stipulated  sum  should  be  excessive  in  amount,  and  greatly 
exceed  the  value  of  the  property,  this  would  be  a  strong,  even  if  not  con- 
clusive, reason  for  a  court  of  equity  to  treat  it  as  a  penalty : «'  See 
Spencer  v.  Tilden,  5  Cow.  144;  Haldeman  v.  Jennings,  14  Ark.  329; 
Williams  v.  Green,  14  Ai'k.  315,  326;  Burr  v.  Todd,  41  Pa.  St.  206. 


§442,  (e)  Personal  Property — 
Liquidated  Damages. — Agreement  to 
purchase  the  stock  of  a  corporation: 
Leeman  v.  Edison  Electric  Ilium. 
Co.,  53  N.  Y.  Supp.  302.  Sale  of  a 
slave:  Tardeveau  v.  Smith,  3  Ky. 
(Hardin)  175,  3  Am.  Dec.  727.  In 
Cummings  v.  Dudley,  60  Cal.  383,  44 
Am.  Rep.  58,  a  provision  in  a  con- 
tract to  sell  horses,  where  no  time 
was  fixed  for  delivery  and  no  speci- 
fied horses  were  agreed  upon,  was 
held  to  be  for  liquidated  damages. 
A  stipulation  for  liquidated  damages 
for  failure  to  deliver  cattle  sold  has 
been  enforced:  Frost  v.  Foote  (Tex. 
Civ.  App.),  44  S.  W.  1071:  Copeland 
V.  Holman  (Tex.  Civ.  App.),  51 
S.  W.  257;  Millar  v.  Smith,  28  Tex. 
Civ.  App.  386,  67  S.  W.  429.  But  in 
Evans  v.  Moseley,  84  Kan.  322,  50 
L.  R.  A.  (N.  S.)  889,  114  Pac.  374, 
a  provision  for  the  forfeiture  of 
$3,000  paid  as  an  advance  pay- 
ment on  purchase  of  cattle,  was 
held  to  be  a  penalty.  In  Maxwell 
v.    Allen,    78    Me.   32,    57    Am.    Rep. 


783,  3  Atl.  386,  a  provision  in  a  con- 
tract by  one  partner  to  sell  a  stock 
of  goods  to  another  was  held  to  bo 
for  liquidated  damages. 

Penalties. — Agreement  for  sale  of 
stock  or  bonds  which  have  a  market 
value:  Baird  v.  Tolliver,  25  Tenn, 
(6  Humph.)  186,  44  Am.  Dec.  298; 
Graham  v.  Bickham,  4  Dall.  149,  2 
Yeates,  32,  1  Am.  Dec.  328.  Sale 
of  sheep  or  cattle:  Squires  v.  El- 
wood,  33  Neb.  126,  49  N.  W.  939; 
Home  Land  &  Cattle  Co.  v.  Mc- 
Namara,  111  Fed.  822,  49  C.  C.  A. 
642.  Sale  of  railroad  ties:  Gulf,  C. 
&  S.  F.  R.  Co.  V.  Ward  (Tex.  Civ. 
App.),  34  S.  W.  328.  Sale  of  bug- 
gies: Mansur  &  Tebbetts  Impl.  Co. 
V.  Willet  (Okl.),  61  Pac.  1066.  Sale 
of  bags:  Pacific  Factor  Co.  v.  Adler, 
90  Cal.  110,  25  Am.  St.  Rep.  102,  27 
Pac.  36.  A  person  to  whom  is 
awarded  a  contract  to  furnish  a  city 
with  certain  articles  of  personalty 
may  recover  a  certified  check  de- 
posited with  the  city  under  a  pro- 
vision  of   law  requiring  all  bidders 


§  443  EQUITY   JURISPRUDENCE.  842 

by  any  exact  pecuniary  standard,  and  also  of  one  or  more 
other  acts  in  respect  of  which  the  damages  are  easily  ascer- 
tainable by  a  jury,  and  a  certain  sum  is  stipulated  to  be 
paid  upon  a  violation  of  any  or  of  all  these  provisions,  such 
sum  must  be  taken  to  be  a  penalty. ^  ^ 

§  443,  1  Snell's  Equity,  288 ;  Kemble  v.  Farren,  6  Bing.  141 ;  Davies 
V.  Penton,  6  Barn.  &  C.  216,  223;  Horner  v.  Flintoff,  9  Mees.  &  W.  078, 
681;  Dimick  v.  Coilett,  12  Moore  P.  C.  C.  199;  Trower  v.  Elder,  77  111. 
452,  and  cases  cited;  First  Orthodox  Church  v.  Walrath,  27  Mich.  232; 
Cook  V.  Finch,  19  Minn.  407;  Morris  v.  McCoy,  7  Nev.  399;  Dullaghen 
V.  Fitch,  42  Wis.  679;  Lyman  v.  Babcock,  40  Wis.  503;  Savannah  R.  R. 
V.  Callahan,  56  Ga.  331;  Shreve  v.  Brereton,  51  Pa.  St.  175,  180;  Niver 
V.  Rossman,  18  Barb.  60 ;  Jackson  v.  Baker,  2  Edw.  Ch.  471 ;  Cheddick  v. 
Marsh,  21  N.  J.  L.  363;  Whitfield  v.  Levy,  35  N.  J.  L.  149;  Berry  v. 
Wisdom,  3  Ohio  St.  244;  Basye  v.  Ambrose,  28  Mo.  39;  Long  v.  Towl, 
42  Mo.  548,  97  Am.  Dec.  355. 

In  the  leading  case  upon  this  rule  (Kemble  v.  Farren,  6  Bing.  141), 
the  defendant  had  agreed  to  act  as  principal  comedian  at  the  plaintiff's 
theater  for  four  seasons,  conforming  in  all  things  to  the  rules  of  the 
theater.  The  plaintiff  was  to  pay  the  defendant  three  pounds  every  night 
the  theater  was  open,  with  other  tenns.  The  agreement  contained  a 
clause  that  if  either  of  the  parties  should  neglect  or  refuse  to  fulfill  the 

to  make  such  deposit,  and  providing  Willson  v.  Love,  [1896]   1  Q.  B.  626 

that   if   the   successful   bidder    shall  (establishing    the    rule    in    its    first 

enter  into  contract  with  bond,  with-  form) ;    East    Moline    Plow    Co.    v. 

out   delay,   his   deposit    shall   be   re-  Weir  Plow  Co.,  93  Fed.  250;   Smith 

turned,   when,  without  fault   on   his  v.    Newell,    37    Fla.    147,    20    South, 

part,     such      successful     bidder     to  249;  Monmouth  Park  Ass'n  v.  War- 

whom  the  contract  is  awarded  is  un-  ren,   55   N.   J.   L.   598,   27   Atl.   932; 

able    to    procure    a    surety    on    his  Nash   v.   Hermosilla,   9   Cal.   584,   70 

bond,  and,  for  this  reason,  the  con-  Am.  Dec.  676;  Iroquois  Furnace  Co. 

tract    is    subsequently    awarded    by  v.  Wilkin  Mfg.  Co.,  181  111.  582,  54 

the    city    to    another    bidder    for    a  N.  E.  987;  Carter  v.  Strom,  41  Minn, 

much   smaller   sum   than   the   former  522,  43  N.  W.  394;  City  of  Madison 

bid.     In  such  case  the  deposit  must  v.    American    Sanitary    Engineering 

be  regarded  as  a  penalty  and  not  as  Co.  (Wis.),  95  N.  W.  1097;   Mansur 

liquidated      damages:      Willson      v.  &     Tebbetts     Impl.     Co.     v.     Tissier 

Mayor,  83  Md.  203,  55  Am.  St.  Rep.  Arms  &  Hdw.   Co.,  136  Ala.  597,  33 

339,  34  Atl.  774.  South.    818;    Krutz    v.    Eobbins,    12 

§  443,  (b)  Quoted  in  Everett  Land  Wash.    7,   50    Am.   St.   Rep.    871,    28 

Co.  V.  Maney,  16  Wash.  552,  48  Pac.  L.  R.  A.  676,  40  Pac.  415;  Hooper  v. 

243.     The    text    is    cited    in    Filers  Savannah,    etc.,    K.    E.    Co.,    69    Ala. 

Music    House    v.    Oriental    Co.,    69  529;    Gibbs   v.    Cooper,   86   N.   J.   L. 

Wash.     618,     125     Pac.     1023.     See  226,  90  Atl.  1115;  Gougar  v.  Buffalo 


843 


CONCERNING   PENALTIES    AND    FORFEITURES. 


§444 


§  444.  Fourth.  Whetlicr  an  agreement  provides  for  the 
performance  or  non-performance  of  one  single  act,  or  of 
several  distinct  and  separate  acts,  if  the  stipulation  to  pay 
a  certain  sum  of  money  upon  a  default  is  so  framed,  is  of 

said  agreement,  or  any  part  thereof,  or  any  stipulation  therein  contained, 
such  party  should  pay  to  the  other  the  sum  of  one  thousand  pounds,  to 
which  sum  it  was  thereby  agreed  that  the  damages  sustained  by  such 
omission  should  amount,  and  which  sum  was  thereby  declared  by  the  par- 
ties to  be  liquidated  and  ascertained  damages,  and  not  a  penalty  or  penal 
sum,  or  in  the  nature  thereof.  The  breach  alleged  was  that  defendant 
refused  to  act  during  the  second  season.  The  court  held  that  the  sum  of 
one  thousand  pounds  must  be  taken  to  be  a  penalty,  as  it  was  not  limited 
to  those  breaches  which  were  of  an  uncertain  nature  and  amount.  The 
mere  fact,  however,  that  an  agreement  contains  two  or  more  provisions 
differing  in  kind  and  importance  does  not  of  itself  necessarily  bring  it 
within  the  operation  of  this  rule.  If  the  various  acts  stipulated  to  be 
done  are  but  minor  parts  of  one  single  whole, — steps  in  the  accomplish- 
ment of  one  single  end, — so  that  the  contract  is  in  reality  one,  then  it 
may  properly  come  under  the  operation  of  the  second  rule  as  given  in 
the  text.     See  the  cases  illustrating  this  position,  ante,  in  the  note  under 


Specialty  Co.,  26  Colo.  App.  8,  141 
Pac.  511;  Greenblatt  v.  McCall  & 
Co.,  67  Fla.  165,  64  Soutli.  748; 
Mayor  etc.  of  Brunswick  v.  Aetna 
Indemnity  Co.,  4  Ga.  App.  722,  62 
S.  E.  475;  Chicago,  B.  &  Q.  R.  Co. 
V.  Dockery,  195  Fed.  221,  115  C.  C. 
A.  173;  Boulware  v.  Crolin,  122  Mo. 
App.  571,  99  S.  W.  796;  City  of 
Summit  v.  Morris  Co.  Traction  Co., 
85  N.  J.  L.  193,  L.  R.  A.  1915E,  385, 
88  Atl.  1048;  Raymond  v.  Edel- 
brock,  15  N.  D.  231,  107  N.  W.  194; 
Sanders  v.  McKim,  138  Iowa,  122, 
115  N.  W.  917;  Elzey  v.  City  of 
Winterset,  172  Iowa,  643,  154  N.  W. 
901;  Western  Macaroni  Mfg.  Co.  v. 
Fiore,  47  Utah,  108,  151  Pac.  984. 
In  City  of  El  Reno  v.  Cullinane,  4 
Okl.  457,  46  Pac.  510,  a  bond  for 
$1,000  was  given  with  two  condi- 
tions— one  that  certain  work  be 
commenced  by  a  certain  day,  the 
other    that   the    work   be    completed 


by  a  certain  day.  The  court  held 
the  provision  to  be  a  penalty,  say- 
ing: "These  conditions  seem  very 
unequal.  It  is  difficult  to  see  how 
more  than  nominal  damages  could 
result  from  a  breach  of  the  former, 
while  a  breach  of  the  latter  might, 
under  certain  circumstances,  result 
in  very  heavy  damages.  In  case  the 
former  condition  alone  had  been 
broken,  and  the  other  complied  with 
by  a  completion  of  the  work  in  the 
prescribed  time,  it  would  be  un- 
conscionable to  allow  $1,000  as 
liquidated  damages;  and  this  is  a 
powerful  argument  in  support  of 
the  presumption  that  the  parties 
did  not  intend  the  sum  named  as 
liquidated  damages."  In  Keck  v. 
Bieber,  148  Pa.  St.  645,  33  Am.  St. 
Rep.  846,  24  Atl.  170,  there  were 
covenants  to  indemnify  plaintiff,  to 
pay  a  royalty,  to  fill  up  certain 
holes,    to    use    a    certain    road,    etc. 


§  444  EQUITY    JURISPRUDENCE.  844 

such  a  nature  and  effect  that  it  necessarily  renders  the 
defaulting  party  liable  in  the  same  amount  at  all  events, 
both  when  his  failure  to  perform  is  complete,  and  when  it 
is  only  partial,  the  sum  must  be  regarded  as  a  penalty,  and 

§  442.  A  series  of  decisions  by  the  New  York  court  of  last  resort  deny 
the  correctness  of  the  rule  in  the  form  as  given  in  the  text  and  as  adopted 
by  the  great  majority  of  cases;  and  insist  that  the  following  is  its  true 
reading,  as  derived  from  the  early  authorities,  viz. :  Where  a  party  binds 
himself  to  do  several  things  of  different  degrees  of  importance,  a  certain 
sum  of  money  made  payable  upon  the  non-performance  of  either  or  any 
is  necessarily  a  penalty  only  when  one  of  these  several  things  agreed  to 
he  done  is  the  payment  of  a  smto  of  money.  Thus  in  Cotheal  v.  Talmage, 
9  N.  Y.  551,  61  Am.  Dec.  716,  the  facts  of  which  are  briefly  stated  in  a 
previous  note,  Ruggles,  J.,  after  quoting  the  rule  in  its  usual  form,  and 
as  given  in  the  text,  said:  "This  doctrine,  in  the  cases  in  which  it  is  as- 
serted, is  traced  to  the  cases  of  Astley  v.  Weldon,  2  Bos.  &  P.  346,  and 
Kemble  v.  Farren,  6  Bing.  141,  but  I  do  not  understand  either  of  these 
cases  as  establishing  any  such  rule.  The  principle  to  be  deducted  from 
them  is,  that  where  a  party  agrees  to  do  several  things,  one  of  which  is 
to  pay  a  sum  of  money,  and  in  case  of  a  failure  to  perfoi-m  any  or  either 
of  the  stipulations,  agrees  to  pay  a  larger  sum  as  liquidated  damages,  the 
larger  sum  is  to  be  regarded  in  the  nature  of  a  penalty;  and  being  a 
penalty  in  regard  to  one  of  the  stipulations  to  be  performed,  is  a  penalty 
as  to  all."  To  the  same  effect  are  Clement  v.  Cash,  21  N.  Y.  253,  259; 
Bag-ley  v.  Peddie,  16  N.  Y.  470,  69  Am.  Dec.  713.« 

One    amount   was    stipulated   for   in  Floding,   137   Ga.   531,   73  S.  E.   729, 

case  of  breach.     The  provision  was  the  agreement  was   (1)    to  give  ac- 

held   to   be   a  penalty.     In   Wilhelm  ceptable    security    on    note    in    ten 

v.   Eaves,   21    Or.    194,   14   L.   R.   A.  days;   (2)   before  May  1st  to  give  a 

297,  27   Pac.  1053,  the  plaintiff  was  mortgage  on  real  property  as   addi- 

made  manager  of   defendant's   mar-  tional   security;    (3)   to   pay  fee  for 

ket.     There     were     stipulations     on  recording.     A      failure      of      either 

defendant's    part    as    to    amount    of  would  be  a  breach  of  the  bond.     It 

compensation,   as  to  lease  of   a  res-  was    held    that    the    provision    was 

taurant,  etc.,  and  on  plaintiff's  part  for  a   penalty.     See,   also,   Myers   v. 

as    to    keeping    the    market    clean,  Ealston,  57  Wash.  47,  106  Pac.  474. 
open   during   certain   hours,   and   re-  §  443,     (c)     In    Wallis    v.     Smith, 

fraining      from      incurring      certain  L.   R.   21   Ch.   Div.   243,   the  English 

debts,    etc.     The    contract    provided  cases     were     reviewed     by     Jessel, 

for    $200    damages    to    secure    per-  M.  E.,  and  the  first  form  of  the  rule 

formance  of  "all  and  every"  of  the  as  stated  in  the  text  was   rejected, 

covenants.     The   text    was    cited    as  as    supported    by    dicta    only.     The 

authority  for  holding  the   provision  rule  of  Cotheal  v.  Talmage  was  ad- 

to    be     a    penalty.     In     Floding    v.  mitted,  and  it  was  also  admitted,  but 


845 


CONCERNING    PENALTIES    AND    FORFEITURES. 


444 


not  as  liquidated  damages.^  This  rule  plainly  rests  upon 
the  same  grounds  as  the  third,  and  may  be  considered  a 
particular  application  thereof. ^  ^ 

§444,  1  Jemmison  v.  Gray,  29  Iowa,  537;  Lee  v.  Overstreet,  44  Ga. 
507;  Hamaker  v.  Schroers,  49  Mo.  40G;  Taylor  v.  The  Marcella,  1  Woods, 
302;  Lyman  v.  Babcock,  40  Wis.  503;  Dallaghen  v.  Fitch,  42  Wis.  679; 
Ex  parte  Pollard,  17  Bank.  Reg.  228;  Savannah  R.  R.  v.  Callaghan,  56 
Ga.  331;  Shreve  v.  Brereton,  51  Pa.  St.  175;  Curry  v.  Larer,  7  Pa.  St. 
470,  49  Am.  Dec.  486;  Perkins  v.  Lyman,  11  Mass.  76,  6  Am.  Dec.  158; 
Lampman  v.  Cochran,  16  N.  Y.  269,  277.  Li  Jemmison  v.  Gray,  29  Iowa, 
537,  the  contract  was  to  deliver  sixty  thousand  railroad  ties,  to  be  paid 
for  as  delivered,  but  ten  per  cent  of  the  monthly  estimates  were  to  be 


not  decided,  that  the  stipulated  sum 
might  be  regarded  as  a  penalty 
when  one  or  more  of  the  breaches 
provided  for  was  of  trifling  im- 
portance. But  in  the  recent  case  of 
Willson  V.  Love,  [1896]  1  Q.  B.  626, 
these  observations  of  Jessel,  M.  R., 
were  expressly  overruled,  the  rule  in 
the  first  form  stated  by  the  author 
was  adopted  and  made  the  basis  of 
the  decision  of  the  court,  and  the 
effect  of  Wallis  v.  Smith  was  lim- 
ited to  its  facts,  A'iz.,  to  cases  not 
of  penalty,  but  of  the  forfeiture  of 
a  deposit.  The  rule  may,  therefore, 
be  regarded  as  settled,  so  far  as  the 
English  cases  are  concerned.  In 
the  recent  case  in  the  House  of 
Lords,  Dunlop  Pneumatic  Tyre  Co., 
Ltd.,  v.  New  Garage  &  Motor  Co., 
Ltd.,  [1915]  A.  C.  79,  87,  the  rule 
was  laid  down  in  the  following 
words:  "There  is  a  presumption 
(but  no  more)  that  it  is  a  penalty 
when  'a  single  lump  sum  is  made 
payable  by  way  of  compensation,  on 
the  occurrence  of  one  or  more  or  all 
of  several  events,  some  of  which 
may  occasion  serious  and  others  but 
trifling  damage'  (Lord  Watson  in 
Lord  Elphinstone  v.  Monkland  Iron 
&  Coal  Co.,  11  App.  Cas.  332)." 
This    is     explained     (page     89)     as 


meaning,  "If  you  can  clearly  see 
that  the  loss  on  one  particular 
breach  could  never  amount  to  the 
stipulated  sum,  then  you  may  come 
to  the  conclusion  that  the  sum  is 
penalty.  But  further  than  this  it 
does  not  go."  The  presumption, 
however,  is  not  conclusive.  In  this 
case  the  damage  was  the  same  in 
kind  for  every  possible  breach,  and 
was  incapable  of  being  precisely 
ascertained,  and  the  stipulated  sum 
was  a  fair  pre-estimate  of  the 
probable  damage  and  not  uncon- 
scionable. The  case,  therefore,  falls 
within  the  rule  of  §  445,  note  2;  it 
appears  to  confirm  the  rules  on  the 
subject  substantially  in  the  form  in 
which  they  are  stated  by  the  author. 

§  444,  (a)  Quoted  in  Heatwole  v. 
Gorrell,  35  Kan.  692,  12  Pac.  135; 
Zenor  v.  Pryor,  56  Ind.  App.  222, 
106  N.  E.  746;  City  National  Bank 
V.  Kelly  (Okl.),  151  Pae.  1172;  Bell 
V.  Seranton  Coal  Mines,  59  Wash. 
659,  110  Pac.  628;  cited  in  Gay  Mfg. 
Co.  V.  Camp,  65  Fed.  794,  13  C.  C.  A. 
137,  25  U.  S.  App.  134;  Eilers  Music 
House  V.  Oriental  Co.,  69  Wash.  618, 
125  Pac.  1023. 

§444,  (b)  Thus,  in  Johnson  v. 
Cook,  24  Wash.  274,  64  Pac.  729,  a 
certain    sum    was    stipulated    for    in 


§  445  EQUITY    JURISPRUDENCE.  846 

§  445.  Fifth.  Finally,  altliough  an  agreement  may  con- 
tain two  or  more  provisions  for  the  doing  or  not  doing  dif- 
ferent acts,  still,  where  the  stipulation  to  pay  a  certain  sum 

retained  by  the  buyer  as  a  security  for  the  final  completion.  This  ten 
per  cent  was  held  to  be  a  penalty,  and  not  liquidated  damages.  In  Lee 
V.  Overstreet,  44  Ga.  507,  defendant  contracted  to  deliver  all  the  turpen- 
tine made  on  his  plantation  iii  lots  of  forty  barrels  each,  to  be  paid  for 
on  delivery,  at  the  rate  of  five  dollars  per  barrel,  and  either  party  failing: 
was  to  forfeit  one  thousand  dollars.  This  sum  was  held  to  be  a  penalty. 
In  Shreve  v.  Brereton,  51  Pa.  St.  175,  the  contract  was  similar,  to  deliver 
one  thousand  barrels  of  petroleum,  to  be  paid  for  in  a  specified  manner, 
and  the  parties  bound  themselves  in  the  sum  of  ten  thousand  dollars, 
not  as  a  penalty,  but  as  liquidated  damages.  The  court  said  that  the 
intention  could  not  have  been  for  the  vendor  to  be  liable  for  that  large 
sum  when  he  failed  to  deliver  only  one  barrel,  as  much  as  when  he  failed 
to  deliver  the  whole  one  thousand  barrels,  and  the  sum  must,  therefore, 
have  been  meant  as  a  penalty.  In  Hamaker  v.  Schroers,  49  Mo.  406, 
defendant  agreed  to  sell  and  deliver  one  hundred  grain-drills  of  a  speci- 
fied kind  in  a  certain  time,  or  be  liable  to  pay  sixteen  hundred  dollars. 
The  court  held  that  to  regard  this  sum  as  liquidated  damages  would  sub- 
ject the  defendant  to  the  same  liability  upon  failing  to  deliver  only  one 
of  the  machines  as  upon  failing  to  deliver  them  all,  and  the  sura  must 
be  treated  as  a  penalty.  It  should  be  observed  that  this  rule  must  always 
be  taken  into  account  in  every  case  where  it  is  sought  to  apply  the  second 
rule  of  the  text,  for  its  effect  is  necessarily  to  modify  the  operation  of 
that  rule.  In  other  words,  there  are  many  agreements  which  would  other- 
wise come  under  the  second  rule  because  there  is  no  means  of  accurately 
fixing  the  legal  measure  of  damages  resulting  from  a  violation,  but  which 
are  prevented  from  so  doing,  since  the  liability  to  pay  a  certain  sum  is 
made  to  be  the  same,  whether  the  failure  to  perform  is  complete  or  only 
partial. 

case  defendant  shoiild  not  complete  The    provision   was    held    a   penalty. 

a   house   and  remove   all  liens  from  So,  in   a   contract   to   furnish   about 

the  property.     The  case  was  held  to  $13,000   worth    of    ornamental    terra 

come  within  the   rule  stated  in  the  cotta  for  building,  with  a  provision 

text.     See  Wibaux  v.  Grinnell,  etc.,  of    fifty    dollars    a    day    liquidated 

Co.,   9   Mont.   1.'54,   22   Pac.   492.     In  damages   for    delay.      This   was   not 

McCall  V.  Deuchler,  174  Fed.  133,  98  a     contract     for     building,     but     to 

C.  C.  A.  169,  a  contract  for  the  sale  furnish  numerous  articles.     The  pro- 

and    delivery    of    patterns,    running  vision  was  held  to  be  for  a  penalty: 

over  a  period  of  five  years,  provided  Northwestern    Terra    Cotta     Co.    v. 

that    a    breach    should    entitle    the  Caldwell,  234  Fed.  491,  148  C.  C.  A. 

other   party   to  recover   the   amount  257. 
to  be  paid  during  the  entire  period. 


847  CONCERNING    PENALTIES    AND    FORFEITURES.  §  445 

of  money  upon  a  default  attaches  to  only  one  of  these  pro- 
visions, which  is  of  such  a  nature  that  there  is  no  certain 
means  of  ascertaining  the  amount  of  damages  resulting 
from  its  violation,^  ^  or  where  all  of  the  provisions  are  of 
such  a  nature  that  the  damages  occasioned  by  their  breach 
cannot  be  measured,  and  a  certain  sum  is  made  payable 
upon  a  default  generally  in  any  of  them,^  ^ — in  each  of  these 
cases,  the  sum  so  agreed  to  be  paid  may  be  considered  as 
liquidated  damage,  provided,  of  course,  that  the  language 
of  the  stipulation  does  not  bring  it  within  the  limitations 
of  the  preceding  fourth  rule.  It  is  evident  that  this  prop- 
osition, in  both  its  branches,  is  identical  in  substance  with 
the  second  rule,  heretofore  given,  and  rests  upon  exactly 
the  same  grounds.  The  foregoing  rules  may  be  considered 
as  settled  by  the  strong  preponderance  of  judicial  authority, 
and  they  serve  to  explain  large  and  important  classes  of 
cases.  There  are  undoubtedly  numerous  instances  which 
cannot  be  easily  referred  to  either  of  these  rules ;  and  this 
must  be  so  almost  as  a  matter  of  necessity.  Since  agree- 
ments are  of  infinite  variety  in  their  objects  and  in  their 
provisions,  and  since  the  question  of  penalty  or  liquidated 

§  445,  1  Green  v.  Price,  13  Mees.  &  W.  695,  16  Mees.  &  W.  354 ;  Raw- 
linson  v.  Clarke,  14  Mees.  &  W.  187;  Shute  v.  Hamilton,  3  Daly,  462; 
Mott  V.  Mott,  11  Barb.  134 ;  Dakin  v.  Williams,  17  Wend.  447,  22  Wend. 
201 ;  Pearson  v.  Williams,  24  Wend.  244,  26  Wend.  630 ;  Mead  v.  Wheeler, 
13  N.  H.  301;  Hodges  v.  King,  7  Met.  583;  Lange  v.  Week,  2  Ohio  St. 
519 ;  Watts  v.  Sheppard,  2  Ala.  425,  445. 

§  445,  2  Atkyns  v.  Kinnier,  4  Ex.  776-783 ;  Galsworthy  v.  Strutt,  1 
Ex.  659 ;  Hall  v.  Crowley,  5  Allen,  304,  81  Am.  Dec.  745 ;  Chase  v.  Allen, 
13  Gray,  42;  Young  v.  White,  5  Watts,  460;  Powell  v.  Burroughs,  54 
Pa.  St.  329,  336;  O'Donnell  v.  Rosenberg,  14  Abb.  Pr.,  N.  S.,  59;  Leary 
V.  Laflin,  101  Mass.  334;  Dwinel  v.  Brown,  54  Me.  458;  Clement  v.  Cash, 
21  N.  Y.  253 ;  Cotheal  v.  Talmage,  9  N.  Y.  551,  61  Am.  Dec.  710 ;  Bagley 
V.  Peddie,  16  N.  Y.  470,  69  Am.  Dec.  713. 

§445,    (a)    Emery    v.    Boyle,    200  103   N.   W.   700.     This   rule   was   es- 

Pa.  St.  249,  49  Atl.  779   (dictum).  tablished   in   the   important   case   of 

§  445,  (b)  See  Wallis  v.  Smith,  L.  K.  Dunlop  Pneumatic  Tyre  Co.,  Ltd.,  v. 

21  Ch.  Div.  243;   Springwell's  Tp.  v.  New     Garage     &    Motor     Co.,    I^td., 

Detroit,  P.  &  N.  Ry.,  140  Mich.  277,  [1915]  A.  C.  (H.  of  L.)   79. 


§445 


EQUITY    JURISPRUDENCE. 


84b 


damages  is  always  one  of  intention,  depending  npon  the 
terms  and  circumstances  of  each  particular  contract,  there 
must  be  many  agreements  which  cannot  be  brought  within 
the  scope  of  any  specific  rule,  and  with  which  a  court  can 
only  deal  by  applying  the  most  general  canon  of  interpre- 
tation.^  '^ 

§  445,  3  In  the  following  cases,  not  already  cited  in  the  former  notes, 
the  sum  was  held  to  be  a  penalty:  Colwell  v.  Lawrence,  38  N.  Y.  71; 
Green  v.  Tweed,  13  Abb.  Pr.,  N.  S.,  427  (excessive  amount) ;  Staples  v. 
Parker,  41  Barb.  648;  Wallis  v.  Carpenter,  13  Allen,  19;  Long  v.  Towl, 
42  Mo.  545,  97  Am.  Dec.  355 ;  Ranger  v.  Great  Western  R'y  Co.,  5  H.  L. 
Cas.  72.  And  in  the  following  cases  the  sum  was  held  to  be  liquidated 
damages:  Leggett  v.  Mut.  Life  Ins.  Co.,  50  Barb.  61G;  Gobble  v.  Linder, 
76  111.  157;  Ryan  v.  Martin,  16  Wis.  57;  Hise  v.  Foster,  17  Iowa,  23; 
Morse  V.  Rathburn,  42  Mo.  594,  97  Am.  Dec.  359;  Streeter  v.  Rush,  25 
Cal.  67;  Lightner  v.  Menzel,  35  Cal.  452. 


§445,  (c)  The  five  rules  stated  in 
§§  441-445  of  the  text  are  quoted  as 
proper  statements  of  the  established 
doctrines  in  Johnson  v.  Cook,  24 
Wash.  274,  64  Pac.  729,  and  cited  in 
Colonna  Dry  Dock  Co.  v.  Colonna, 
108  Va.  230,  61  S.  E.  770. 

Conditional  Sale  Contracts. — An 
excellent  discussion  of  the  nature  of 
provisions  for  forfeiture  of  amounts 
paid  under  conditional  sale  con- 
tracts is  contained  in  Eilers  Music 
House  V.  Oriental  Co.,  69  Wash.  618, 
125  Pac.  1023.  The  court  said: 
"The  vendee's  failure  to  pay  for  the 
instrument,  removal,  or  attempt  to 
remove  or  sell,  the  instrument  are 
plainly  of  equal  importance,  since 
they  lead  to  the  same  result.  They 
would  each  constitute  such  a  breach 
of  the  contract  as  to  make  a  re- 
sumption of  possession  by  the  ven- 
dor absolutely  necessary  to  his  pro- 
tection. Whatever  breach  forces 
that  result,  the  damages  consequent 
thereon  are  necessarily  the  same; 
hence  the  same  sum,  as  liquidated 
damages,    if    appropriate    to    either. 


is     appropriate     to     each     of     such 
breaches. 

"It  is  next  argued  that,  inasmuch 
as  the  sum  to  be  applied  as  liqui- 
dated damages  constantly  increases 
as  the  performance  of  the  contract 
continues,  the  damages  paid  would 
be  greater  when  the  failure  to  per- 
form was  only  partial  than  when 
the  failure  was  complete.  Again,  it 
must  be  conceded  on  sound  author- 
ity that,  where  the  stipulated  sum 
to  be  paid  is  the  same  or  larger 
where  the  failure  to  perform  is  only 
partial,  as  where  the  failure  is  com- 
plete, the  stipulation  will  usually  be 
construed  as  a  penalty.  (Citing 
§  444  of  the  text.)  This  rule,  how- 
ever, cannot  be  applied  blindly  and 
without  reference  to  the  nature  of 
the  contract,  or  without  regard  to 
the  plainly  expressed  intention  of 
the  parties.  (Quoting  §  445  of  the 
text.)  ...  In  the  case  here  it  is 
manifest  that  the  damage  must  be 
the  greater  the  longer  the  vendor  is 
kept  out  of  possession,  and  the 
longer  the  vendee  has  the  use  of  the 


849 


CONCERNING   PENALTIES    AND   FOEFEITURES, 


§446 


§  446.  No  Election  to  Pay  the  Penalty  and  not  to  Per- 
form.— With  respect  to  the  effect  of  a  penalty  upon  the 
equitable  rights  of  the  parties,  while  a  court  of  equity  will 
relieve  the  party  who  has  thus  bound  himself  against  a  pen- 


instrument.  The  longer  the  vendee 
keeps  up  his  payments  and  retains 
the  possession  of  the  property,  the 
greater  will  be  the  deterioration  of 
the  property,  and  the  longer  will 
the  vendor  be  deprived  of  its  use 
and  disposition  by  sale  or  rental. 
It  seems  clear  that  in  such  a  case 
the  fact  that  the  sum  fixed  as  liqui- 
dated damages  increases  as  the 
actual  damage  increases  is  no 
ground  for  declaring  the  stipulation 
one  for  a  penalty,  rather  than  for 
liquidated    damages." 

Special  Rules. — If  a  stipulation  is 
held  to  be  for  liquidated  damages, 
the  plaintiff  need  not  prove  that  he 
lias  suffered  any  damage.  Sanford 
V.  First  Nat.  Bank,  94  Iowa,  680,  63 
N.  W.  459;  Little  v.  Banks,  85 
N.  Y.  259.  Nor  can  the  defendant 
show  that  the  actual  damage  was 
less  than  the  stipulated  amount,  it 
being  conceded  by  the  court  that 
the  provision  is  for  liquidated  dam- 
ages.    May    v.    Crawford,    150    Mo. 

504,  51  S.  W.  693.  And  of  course  in 
such  a  case  the  plaintiff  cannot  re- 
cover more  than  the  stipulated 
amount.  Morrison  v.  Ashburn  (Tex. 
Civ.  App.),  21  S.  W.  993;  Darrow  v. 
Cornell,  12  App.  Div.  604,  42  N.  Y. 
Supp.  1081;  Smith  v.  Vail,  53  App. 
Div.  028.  65  N.  Y.  Supp.  834;  Mayor 
otc.  of  Brunswick  v.  Aetna  Indem- 
nity Co.,  4  Ga.  App.  722,  62  S.  E. 
475.  If  the  amount  named  in  the 
contract  be  regarded  as  liquidated 
damages,  it  forms  the  measure  of 
damages,  and  the  jurj'  are  confined 
to  it.     Hennessy  v.  Mtfzger,  132  111. 

505,  43  Am.  St.  Rep.  267,  38  N.  E. 

1—54 


1058.  It  has  been  intimated  that 
where  the  sum  named  as  liquidated 
damages  is  shown  to  bear  no  reason- 
able proportion  to  the  actual,  only 
actual  damages  can  be  recovered. 
Collier  v.  Betterton  (Tex.),  29  S.  W. 
468.  In  such  a  case,  however,  the 
provision  is  really  a  penalty,  as  we 
have  seen  before.  If  it  does  not 
appear  unreasonable,  the  stipulated 
sum  will  be  held  to  be  the  measure 
of  damage.  Halff  v.  O'Connor,  14 
Tex.  Civ.  App.  191,  37  S.  W.  238. 
The  rule  is  stated  by  the  supreme 
court  of  Nebraska,  in  the  syllabus 
to  Camp  V.  Pollock,  45  Neb.  771,  64 
N.  W.  231,  as  follows:  "Where  dam- 
ages are  liquidated,  and  there  is  no 
conflict  of  evidence  as  to  their 
amount,  the  court  may  direct  the 
jury  as  to  the  precise  amount,  and 
not  leave  it  to  the  assessment  of  the 
jury."  Article  1934  of  the  Eevised 
Civil  Code  of  Louisiana  provides: 
"When  the  parties  by  their  contract 
have  determined  the  sum  that  shall 
be  paid  as  damages  for  its  breach, 
the  creditor  must  recover  that  sum, 
but  is  not  entitled  to  more.  But 
when  the  contract  is  executed  in 
part,  the  damages  agreed  on  by  the 
parties  may  be  reduced  to  the  loss 
really  suffered  and  the  gain  of 
which  the  party  has  been  deprived, 
unless  there  has  been  an  express 
agreement  that  the  sum  fixed  by  the 
contract  shall  be  paid  even  on  a 
partial  breach  of  the  agreement." 
But  in  cases  where  this  statute  ap- 
plies, the  defendant  must  affirma- 
tively establish,  not  only  his  right 
to  a  reduction,  but  the  extent  of  the 


§  446  EQUITY    JURISPEUDENCB.  85( 

ally,  or  will  restrain  its  enforcement  against  liim  at  law, 
it  will  not,  on  the  other  hand,  permit  such  party  to  resist 
a  specific  performance  of  the  contract  by  electing  to  pay 
the  penalty.*  Where  a  person  has  agreed  to  do  a  certain 
act,  or  to  refrain  from  doing  a  certain  act,  and  has  added 
a  penalty  for  the  purpose  of  securing  a  performance,  a 
court  of  equity  will,  if  the  contract  is  otherwise  one  which 
calls  for  its  interposition,  compel  the  party  to  specifically 
perform,  or  restrain  him  from  committing  the  act,  as  the 
case  may  be,  notwithstanding  the  penalty.  If  the  sum 
stipulated  to  be  paid  is  really  a  penalty,  the  party  will  never 
be  allowed  to  pay  it,  and  then  treat  such  payment  as  a 
sufficient  ground  for  refusing  to  perform  his  undertaking.!  ^ 
Where,  however,  the  creditor  party  in  such  a  contract  has 
elected  to  proceed  at  law,  and  has  recovered  a  judgment  for 

§  446,  1  French  v.  Macale,  2  Dru.  &  War.  274 ;  Howard  v.  Hopkins, 
2  Atk.  371;  Cliilliner  v.  Chilliner,  2  Ves.  528;  City  of  London  v.  Pugh, 
4  Brown  Pari.  C,  Tomlins's  ed.,  395;  Hardy  v.  Martin,  1  Cox,  26;  Logan 
V.  Wienholt,  1  Clark  &  P.  611,  7  Bligh,  N.  S.,  1,  49,  50;  Fox  v.  Scard,  33 
Beav.  327;  Hobson  v.  Trevor,  2  P.  Wms.  191;  Kennedy  v.  Lee,  3  Mer. 
441,  450;  Prebble  v.  Bogburst,  1  Swanst.  309;  Jeudwine  v.  Agate,  3  Sim. 
120,  141;  Butler  v.  Powis,  2  Coll.  C.  C.  156;  Jones  v.  Heavens,  L.  R.  2 
Ch.  Div.  636;  In  re  Dagenham  Dock  Co.,  L.  R.  8  Cb.  1022;  Ewins  v. 
Gordon,  49  N.  H.  444;  Gillis  v.  Hall,  7  Pbila.  422,  2  Brewst.  342;  Dooley 

reduction.  Goldman  v.  Goldman,  51  Amanda  Consol.  G.  M.  Co.  v.  Peo- 
La.  Ann.  761,  25  South.  555.  In  pie's  M.  &  M.  Co.,  28  Colo.  251,  64 
Elston  v.  Roop,  133  Ala.  331,  32  Pac.  218;  Hickey  v.  Brinkley,  88 
South.  129,  it  was  held  that  a  court  Neb.  356,  129  N.  W.  553;  Buck- 
is  authorized  to  predicate  its  find-  hout  v.  Witever,  157  Mich.  406,  23 
ing  upon  the  stipulated  amount,  L,  E.  A.  (N.  S.)  506,  122  N.  W.  184. 
even  though  it  be  a  penalty,  in  the  (A  agrees  not  to  compete  in  busi- 
absence  of  other  evidence.  ness,  and  if  he  does  so,  to  forfeit  a 

§446,    (a)    The   text   is  quoted   in  certain  sum  per  annum;   said   to  be 

Cavaiiaugh  v.  Conway,  36  R.  I.  571,  a    penalty,    and    does    not    prevent 

90  All.  lOSO.  specific     performance) ;    Hedrick    v. 

§446,  (b)  This  paragraph  is  cited  Firke.  169  Mich.  549,  135  N.  W.  319; 

in  Jordan  v.  Johnson,  50  Ind.  App.  Mellon   v.    Oliver's   Estate,    256    Pa. 

213,  98  N.  E.  143;  Moss  &  Raley  v.  209,  100  Atl.  796   (adjoining  owners 

Wren    (Tex.   Civ.   App.),   118    S.   W.  bound   themselves   in    penal   sum   to 

149.     See,  also.  National  Prov.  Bank  keep     open    an     alleyway     between 

V.  Marshall,  L.  B.  40  Ch.  Div.  112;  them). 


851  CONCERNING    PENALTIES    AND    FORFEITURES.  §  447 

damages,  he  cannot  afterwards  come  into  a  court  of  equity, 
and  obtain  a  specific  performance ;  he  cannot  have  the  rem- 
edy given  by  both  courts. ^ 

§  447.  Otherwise  With  Liquidated  Damages. — Where, 
however,  the  parties  to  an  agreement  have  added  a  pro- 
vision for  the  payment,  in  case  of  a  breach,  of  a  certain  sum 
which  is  truly  liquidated  damages,  and  not  a  penalty, — in 
other  words,  where  the  contract  stipulates  for  one  of  two 
things  in  the  alternative,  the  doing  of  certain  acts,  or  the 
payment  of  a  certain  amount  of  money  in  lieu  thereof, — 
equity  will  not  interfere  to  decree  a  specific  performance 
of  the  first  alternative,  but  will  leave  the  injured  party 
to  his  remedy  of  damages  at  law.i^     This  is  one  reason 

V.  Watson,  1  Gray,  414;  Hooker  v.  Pynchon,  8  Gray,  550;  Fisher  v. 
Shaw,  42  Me.  32;  Hull  v.  Sturdivant,  46  Me.  34;  Dailey  v.  Lichfield,  10 
Mich.  29 ;  Whitney  v.  Stone,  23  Cal.  275 ;  Dike  v.  Green,  4  R.  I.  288,  295. 
In  French  v.  Macale,  2  Dru.  &  War.  274,  Lord  St.  Leonards  clearly  stated 
this  doctrine:  "The  general  rule  of  equity  is,  that  if  a  thing  be  agreed 
upon  to  be  done,  though  there  is  a  penalty  annexed  to  secure  its  perform- 
ance, yet  the  very  thing  itself  must  be  done.  If  a  man,  for  instance, 
agrees  to  settle  an  estate,  and  executes  his  bond  for  six  hundred  pounds 
as  a  security  for  the  perfonnance  of  his  contract,  he  will  not  be  allowed 
to  pay  the  forfeit  for  his  bond,  and  avoid  his  agreement,  but  he  will  be 
compelled  to  settle  the  estate  in  specific  performance  of  his  agi-eement. 
So  if  a  man  covenants  to  abstain  from  doing  a  certain  act,  and  agrees 
that  if  he  do  it  he  will  pay  a  sum  of  money,  it  would  seem  that  he  will 
be  compelled  to  abstain  from  doing  that  act;  and  just  as  in  the  converse 
case,  he  cannot  elect  to  break  his  agreement  by  paying  for  his  violation 
of  the  contract."  In  Dooley  v.  Watson,  1  Gray,  414,  the  doctrine  was 
laid  down  in  equally  plain  terms  by  Shaw,  C.  J. :  "Courts  of  equity  have 
long  since  overruled  the  doctrine  that  a  bond  for  the  payment  of  money, 
conditioned  to  be  void  on  the  conveyance  of  land,  is  to  be  treated  as  a 
mere  agreement  to  pay  money.  When  the  penalty  appears  to  be  intended 
merely  as  a  security  for  the  perfonnance  of  the  agreement,  the  principal 
object  of  the  parties  will  be  carried  out." 

§  446,  2  Fox  V.  Scard,  33  Beav.  327,  per  Sir  J.  Romilly,  M.  R. 

§  447,  1  French  v.  Macale,  2  Dru.  &  War.  269 ;  Howard  v.  Hopkins,  2 
Atk.  371;  Jones  v.  Green,  3  Younge  &  J.  298;  Coles  v.  Sims,  5  De  Gex, 

§447,  (a)  Quoted  in  Amanda  also,  in  Koch  v.  Streuter,  218  111. 
Consol.  G.  M.  Co.  v.  People's  M.  &  546,  2  L.  R.  A.  (N.  S.)  210,  75  N.  E. 
M.  Co.,  28   Colo.   251,  64  Pac.   218;       1049;  Cavanaugh  v.  Conway,  36  R.  I. 


§448 


EQUITY    JURISPRUDENCE. 


852 


among  many  why  courts  of  equity  incline  strongly  to  con- 
strue such  stipulations  as  providing  for  a  penalty  rather 
than  for  liquidated  damages. 

§  448.  Forfeiture. — This  subject  includes  two  entirely 
distinct  questions,  namely:  When  will  equity  interfere  to 
aid  the  defaulting  party,  and  to  relieve  against  a  forfeiture 
by  setting  it  aside,  or  by  allowing  him  to  go  on  and  perform 

M.  &  G.  1;  Sainter  v.  Ferguson,  1  Macn.  &  G.  286;  Rolfe  v.  Peterson,  2 
Brown  Pari.  C.  436;  Woodward  v.  Gyles,  2  Vern.  119;  Magrane  v.  Arch- 
bold,  1  Dow,  107;  Ranger  v.  Great  Western  R'y  Co.,  5  H.  L.  Gas.  73; 
Shiell  V.  McNitt,  9  Paige,  101;  St.  Mary's  Church  v.  Stockton,  9  N.  J.  Eq. 
520;  Bodine  v.  Glading,  21  Pa.  St.  50,  59  Am.  Dec.  749;  Holdeman  v. 
Jennings,  14  Ark.  329;  Skinner  v.  Dayton,  2  Johns.  Ch.  526;  City  Bank 
of  Baltimore  v.  Smith,  3  Gill  &  J.  265;  Jaquith  v.  Hudson,  5  Mich.  123; 
Hahn  v.  Concordia  Soc,  42  Md.  460. 


579,  90  Atl.  1080.  This  paragraph 
is  cited  in  Moss  &  Raley  v.  Wren 
(Tex.  Civ.  App.),  118  S.  W.  149. 

It  should  be  noticed  that  the  au- 
thor's statement  confines  the  cases 
of  non-intervention  on  the  part  of 
equity  to  those  where  the  contract 
stipulates  for  one  of  two  things  in 
the  alternative,'  and  leaves  untouched 
cases  where  the  stipulation  gives  no 
such  option,  but  merely  specifies  the 
damages  that  shall  be  recoverable  if 
the  contract  is  broken,  and  these 
damages  would  be  construed  by  a 
court  of  law  as  liquidated  damages 
and  not  as  a  penalty  merely.  By 
the  great  weight  of  authority, 
equity  makes  no  distinction  be- 
tween a  provision  for  a  penalty  and 
a  provision  for  liquidated  damages, 
so  far  as  concerns  the  right  to  the 
specific  performance  of  the  contract 
containing  such  provision.  See  Ly- 
man V.  Gedney,  114  111.  388,  55  Am. 
Rep.  871,  29  N.  E.  282,  where  the 
court  said:  "The  mere  fact  that  a 
contract  stipulates  for  the  payment 
of    liquidated    damages    in    case    of 


failure  to  perform  does  not  prevent 
a  court  of  equity  from  decreeing 
specific  performance.  It  is  only 
where  the  contract  stipulates  for 
one  of  two  things  in  the  alternative 
— the  performance  of  certain  acts, 
or  the  payment  of  a  certain  amount 
of  money  in  lieu  thereof — that 
equity  will  not  decree  a  specific  per- 
formance of  the  first  alternative." 
See,  also,  Augusta  Steam  Laundry 
Co.  V.  Debow,  98  Me.  496,  57  Atl. 
845.  In  Phoenix  Ins.  Co.  v.  Conti- 
nental Ins.  Co.,  87  N.  Y.  400,  the 
court  said:  "If  the  primary  inten- 
tion was  that  the  very  thing  cov- 
enanted should  be  done,  then  the 
sum  named  is  in  the  nature  of  a 
penalty  to  secure  the  performance 
of  the  principal  thing;  and  it  can 
make  no  difference  in  the  construc- 
tion of  the  covenant  whether  dam- 
ages for  non-performance  are  left 
to  be  ascertained  by  an  issue  quan- 
tum damnificatus  or  the  parties 
themselves  conclusively  settle  the 
amount."  In  this  case  a  party 
agreed  not  to  build  on  certain  prem- 


853 


CONCERNING    PENALTIES    AND   FORFEITURES. 


§449 


as  though  it  had  not  occurred,  or  by  restraining  the  other 
party  from  enforcing  it?  and  when  will  equity  interfere  at 
the  suit  of  the  creditor  party,  and  by  its  decree  actively 
enforce  and  carry  into  effect  the  forfeiture  against  the  one 
in  default?  The  former  of  these  questions  will  be  exam- 
ined first  in  order. 

§  449.  When  Equity  Will  Relieve.^ — It  has  been  repeat- 
edly assumed  and  asserted  by  numerous  judicial  dicta,  and 
the  statement  seems  to  have  been  accepted  by  many  text- 
writers  as  correct,  that  a  court  of  equity  is  governed  by  the 
same  doctrine  with  respect  to  relief  against  forfeitures  and 
against  penalties.  This  is  true,  perhaps,  when  considered 
simply  as  the  announcement  of  a  rule  in  its  most  general 


ises,  and  "for  a  violation  of  the 
covenant"  agreed  to  pay  "the  sum 
of  $1,500  liquidated  damages."  See, 
also,  Mikelaiczak  v.  Kruppa,  25-i  111. 
209,  98  N.  E.  257;  Heinz  v.  Eoberts, 
135  Iowa,  748,  110  N.  W.  1034;  Hed- 
rick  V.  Firke,  169  Mich.  549,  135 
N.  W.  319;  Wills  v.  Forester,  140 
Mo.  App.  321,  124  S.  W.  1090  (in- 
junction against  breach  of  contract 
not  to  compete  in  business) ;  Ameri- 
can Ice  Co.  v.  Lynch,  74  N.  J.  Eq. 
298,  70  Atl.  138  (same);  Diamond 
Match  Co.  V.  Eoeber,  106  N.  Y.  473, 
€0  Am.  Kep.  464,  13  N.  E.  419,  1 
Ames  Cases  on  Equity,  123,  and 
note;  Bradshaw  v.  Millikin  (N.  C), 
92  S.  E.  161  (same);  Moss  &  Ealey 
V.  Wren,  102  Tex.  567,  113  S.  W. 
739,  120  S.  W.  847  (Tex.  Civ,  App.), 
118  S.  W.  149  (liquidated  damages 
for  breach  of  contract  for  sale  of 
land,  consisting  of  forfeiture  of  the 
amount  of  price  paid) ;  Hudman  v. 
Henderson,  58  Tex.  Civ.  App.  358, 
124  S.  W.  186  .(land  contract).  See, 
however,  Bartholomae  &  Roesing 
Brewing  &  M.  Co.  v.  Modzelewski, 
.269  111.  539,  109  N.  E.  1058,  ignor- 
ing  many   earlier   Illinois   decisions. 


In  all  cases  where  a  party  relies  on 
the  payment  of  liquidated  damages 
as  a  discharge,  it  must  clearly  ap- 
pear that  they  were  to  be  paid  and 
received  absolutely  in  lieu  of  per- 
formance: Higbie  v.  Farr,  28  Minn. 
439,  10  N.  W.  592.  In  California  a 
contract  otherwise  proper  to  be  spe- 
cifically enforced  may  be  thus  en- 
forced though  the  damages  are 
liquidated  and  the  party  in  default 
is  willing  to  pay  the  same:  Cal. 
Civil  Code,  §  3389.  In  Solomon  v. 
Diefenthal,  46  La.  Ann.  897,  15 
South.  183,  it  was  held  that  a  plain- 
tiff cannot  recover  liquidated  dam- 
ages and  have  injunctive  relief  as 
well.  Instances  of  contracts  in  the 
alternative,  where  specific  perform- 
ance was  refused:  Davis  v.  Isen- 
stein,  257  111.  260,  45  L.  R.  A. 
(N.  S.)  52,  100  N.  E.  940  (contract 
provides  that  on  payment  of  $1,500 
fixed  as  "liquidated  damages,"  the 
contract  is  to  become  null  and 
void) ;  Miller  v.  Chicago  Portrait 
Co.  (Tex.  Civ.  App.),  195  S.  W.  619. 
§  449,  (a)  This  section  is  cited  in 
Manhattan  Life  Ins.  Co.  v.  Wright 
(C.  C.  A.),  126  Fed.  82. 


§  450  EQUITY    JUEISPRUDENCE.  854 

form;  but  in  its  practical  application  it  is  subject  to  such 
important  exceptions  and  limitation  that  there  is,  in  fact, 
a  marked  distinction  between  forfeitures  and  penalties,  in 
the  view  with  which  they  are  respectively  regarded  and 
dealt  with  by  equity.  We  have  seen  that  wherever  a  cer- 
tain sum  is  stipulated  to  be  paid  as  security  for  the  per- 
formance of  some  act  which  is  capable  of  pecuniary  meas- 
urement, so  that  the  compensation  in  the  nature  of  damages 
for  a  non-performance  can  be  ascertained  with  reasonable 
exactness,  the  certain  sum  is  taken  to  be  a  penalty,  and  that 
courts  strongly  lean  in  favor  of  a  construction  which  shall 
make  it  a  penalty,  so  that  it  may  be  disregarded.  This  is 
not  universally  true,  is  not  the  practical  test  in  case  of  for- 
feitures, although,  perhaps,  the  court  may  use  the  same 
general  formula  of  words  as  applicable  to  both  instances. 

§  450.  Ground  and  Extent  of  Such  Relief. — It  is  well  set- 
tled that  where  the  agreement  secured  is  simply  one  for 
the  payment  of  money,  a  forfeiture  either  of  land,  chattels, 
securities,  or  money,  incurred  by  its  non-performance,  will 
be  set  aside  on  behalf  of  the  defaulting  party,  or  relieved 
against  in  any  other  manner  made  necessary  by  the  circum- 
stances of  the  case,  on  payment  of  the  debt,  interest,  and 
costs,  if  any  have  accrued,  unless  by  his  inequitable  con- 
duct he  has  debarred  himself  from  the  remedial  right,  or 
unless  the  remedy  is  prohibited,  under  the  special  circum- 
stances of  the  case,  by  some  other  controlling  doctrine  of 
equity.^  ^     Where  the  stipulation,  however,  is  intended  to 

§  450,  1  Hill  V.  Barclay,  16  Ves.  403,  405,  18  Ves.  58,  60 ;  Reynolds  v. 
Pitt,  19  Ves.  140;  Wadman  v.  Calcraft,  10  Ves.  68,  69;  Bowser  v.  Colby, 

1  Hare,  128;  Gregory  v.  Wilson,  9  Hare,  683;  Bracebridge  v.  Buckley, 

2  Price,  200 ;  Skinner  v.  Dayton,  2  Jobns.  Ch.  535,  17  Johns.  339 ;  Hagar 
V.  Buck,  44  Vt.  285,  8  Am.  Rep.  368;  Hancock  v.  Carlton,  6  Gray,  39; 
Carpenter  v.  Westcott,  4  R.  I.  225;  Thompson  v.  Whipple,  5  R.  I.  144; 

§450,    (a)    Quoted   in   Tibbetts   v.  Co.  v.  Bishop,  86  Ark.  489.  126  Am. 

Gate,    66    N.    H.    550,    22    Atl.    559;  St.  Rep.   1098,  112   S.   W.   189;   Rad- 

Franklin  v.  Long,   191   Ala.   310,   68  datz  v.  Florence  Inv.  Co.,  147   Wis. 

South.    149;    Cherokee    Construction  636,  133  N.  W.  1100;  cited  generally 


855  CONCERNING    PENALTIES    AND    FORFEITURES.  §  450 

secure  the  performance  or  non-performance  of  some  act  in 
pais,  it  is  impossible  to  lay  down  any  such  general  rule  with 
which  all  the  classes  of  decisions  shall  harmonize.  It  is  cer- 
tain that  if  the  act  is  of  such  a  nature  that  its  value  cannot 
be  pecuniarily  measured,  if  the  compensation  for  a  de- 
fault cannot  be  ascertained  and  fixed  with  reasonable  pre- 
cision, relief  against  the  forfeiture  incurred  by  its  non- 
performance will  not,  under  ordinary  circumstances,  be 
given.2  b  The  affirmative  of  this  proposition  cannot  be 
stated  as  a  rule  with  the  same  generality.  It  has,  indeed, 
been  said    that  equity  would    relieve  against    forfeitures 

Walker  v.  Wheeler,  2  Conn.  229 ;  Hart  v.  Homiler,  20  Pa.  St.  348 ;  Bright 
V.  Rowland,  3  How.  (Miss.)  398;  Moore  v.  Platte,  8  Mo.  467;  Walling  v. 
Aiken,  3  McMull.  Eq.  1;  Royan  v.  Walker,  1  Wis.  527;  Giles  v.  Austin, 
38  N.  Y.  Sup.  Ct.  215,  62  N.  Y.  486;  Orr.v.  Zimmerman,  63  Mo.  72; 
Palmer  v.  Ford,  70  111.  369. 

§  450,  2  Gregory  v.  Wilson,  9  Hare,  683 ;  Hills  v.  Rowland,  4  De  Gex, 
M.  &  G.  430;  Croft  v.  Goldsmid,  24  Beav.  312;  Nokes  v.  Gibbon,  3  Drew. 
618;  White  v.  Warner,  2  Mer.  459;  Skinner  v.  Dayton,  2  Johns.  Ch.  526, 
535;  Baxter  v.  Lansing,  7  Paige,  350;  Drenkler  v.  Adams,  20  Vt.  415; 
Clarke  v.  Drake,  3  Chand.  253;  Gregg  v.  Landis,  19  N.  J.  Eq.  850,  21 
N.  J.  Eq.  494,  511;  Ottawa  Plank  Road  Co.  v.  Murray,  15  111.  336. 

in  Attala  Min.  &  Mfg.  Co.  v.  Win-  Life  Ins.  Co.,  104  U.  S.  88,  it  was 
Chester,  102  Ala.  184,  14  South.  565;  held  that  equity  will  not  relieve 
Manhattan  Life  Ins.  Co.  v.  Wright  against  a  forfeiture  of  a  life  insur- 
(C.  C.  A.),  126  Fed.  82;  Dodsworth  ance  policy  for  non-payment  of  pre- 
V.  Dodsworth,  254  111.  49,  98  N.  E,  miums.  The  court  said:  "If  the 
279.  See  Noyes  v.  Anderson,  124  payment  of  the  premiums,  and  their 
N.  Y.  175,  21  Am.  St.  Rep.  657,  26  payment  on  the  day  they  fall  due, 
N.  E.  316  (citing  §  450  of  the  text) ;  are  of  the  essence  of  the  contract, 
Sunday  Lake  Min.  Co.  v.  Wakefield,  so  is  the  stipulation  for  the  release 
72  Wis.  204,  39  N.  W.  136;  Jones  v.  of  the  company  from  liability  in 
Bennet,  39  Ky.  (9  Dana)  333.  default  of  punctual  payment.  No 
"Forfeitures  are  sustained  only  compensation  can  be  made  a  life  in- 
when  the  parties  have  contracted  surance  company  for  the  general 
therefor,  and  the  terms  of  a  con-  want  of  punctuality  among  its  pa- 
tract  will  not  be  extended  to  sus-  trons."  See,  also,  Iowa  Life  Ins. 
tain  forfeitures  upon  other  grounds  Co.  v.  Lewis,  187  U.  S.  335,  23  Sup. 
than  those  provided  for  in  the  con-  Ct.  126;  Knickerbocker  Life  Ins. 
tract":  Bennett  v.  Glaspell,  15  N.  D.  Co.  v.  Dietz,  52  Md.  16;  Manhattan 
239,  107  N.  W.  45.  Life  Ins.  Co.  v.  Wright  (C.  C.  A.), 
§  450,  (b)  In  Klein  v.  New  York  126  Fed.  82. 


§  450  EQUITY    JURISPRUDENCE.  856 

in  all  cases  where  compensation  can  be  made;  but  this  is 
clearly  incorrect.  It  is  well  settled  that  a  court  of  equity 
will  not,  under  ordinary  circumstances,  set  aside  forfeit- 
ures incurred  on  the  breach  of  many  covenants  contained  in 
leases,  or  of  stipulations  in  other  agreements,  although  the 
compensation  for  the  resulting  injury  could  be  ascertained 
without  difficulty ;2  and  on  the  other  hand,  the  relief  is  often 
given,  as  will  appear  from  subsequent  paragraphs,  where 
the  agreement  secured  by  the  clause  of  forfeiture  is  not  one 
expressly  and  simply  for  the  payment  of  money.  The  fol- 
lowing proposition  seems  to  be  a  conclusion  fairly  drawn 
from  all  the  decisions  upon  the  subject,  and  to  be  an  accu- 
rate and  comprehensive  statement  of  the  general  doctrine 
as  settled  by  them,  namely:  In  the  absence  of  special  cir- 
cumstances giving  the  defaulting  party  a  higher  remedial 
right,  a  court  of  equity  will  set  aside  or  otherwise  relieve 
against  a  forfeiture,  both  when  it  is  incurred  on  the  breach 
of  an  agreement  expressly  and  simply  for  the  payment  of 
money,  and  also  on  the  breach  of  an  agreement  of  which  the 
obligation,  although  indirectly,  is  yet  substantially  a  pecuni- 
ary one.'*  c  , 

§  450,  3  White  v.  Warner,  2  Mer.  459;  Eaton  v.  Lyon,  3  Ves.  692,  693; 
Hill  V.  Barclay,  16  Ves.  403,  405,  18  Ves.  58-64 ;  Rolf e  v.  Harris,  2  Price, 
206,  note ;  Bracebridge  v.  Buckley,  2  Price,  200 ;  Green  v.  Bridges,  4  Sim. 
96;  Hills  v.  Rowland,  4  De  Gex,  M.  &  G.  430;  Germantown,  etc.,  R'y  v. 
Fitler,  60  Pa.  St.  131,  100  Am.  Dec.  546;  Dunklee  v.  Adams,  20  Vt.  415, 
50  Am.  Dec.  44. 

§  450,  4  This  mode  of  formulating  the  doctrine  is  in  harmony  with  all 
the  decisions,  although  it  does  not  go  as  far  as  some  of  the  dicta.  See  the 
cases  cited  in  the  preceding  notes. 

§450,    (c)   In  Springfield  &  N.  E.  was  actually  completed  in  two  years 

Traction    Co.    v.    Warrick,    249    111.  and   three   months. 

470,  Ann.  Cas.  1912A,  187,  94  N.  E.  A   party   seeking  relief   from   for- 

933,    relief    was    granted    from    for-  feiture  must  offer  to  perform.     This 

feituTe   of  land   by   a   railroad   com-  is   upon   the    principle   that   he   who 

pany  because  of  failure  to  complete  ^^cks  equity  must  do  equity:  Eoche 

A       -fi.-      *    ^      .o.c     ™>,oT,    .r.^A       V.   Hiss,  84  N.  J.  Eq.     242,    93    Atl. 
road    within    two   years,   when   road  '  ^  ' 

804. 


857 


CONCERNING   PENALTIES    AND    FORFEITURES. 


§451 


§  451.  Forfeiture  Occasioned  by  Accident,  Fraud,  Sur- 
prise, or  Ignorance. — There  are,  as  intimated  above,  special 
circumstances  which  will  entitle  a  defaulting  party  to  relief 
against  a  forfeiture  in  cases  where  otherwise  it  would  not 
be  granted.  Although  the  agreement  is  not  one  measur- 
able by  a  pecuniary  compensation,  still,  if  the  party  bound 
by  it  has  been  prevented  from  an  exact  fulfillment,  so  that 
a  forfeiture  is  incurred,  by  unavoidable  accident,  by  fraud, 
by  surprise,  or  by  ignorance,  not  willful,  a  court  of  equity 
will  interpose  and  relieve  him  from  the  forfeiture  so  caused, 
upon  his  making  compensation,  if  necessary,  or  doing  every- 
thing else  within  his  power.^  ^     Also,  in  the  same  class  of 

§  451,  1  Many  of  the  cases  under  this  doctrine  are  those  of  covenants 
in  leases,  but  the  doctrine,  of  course,  extends  to  all  agreements :  *»  Eaton 
V.  Lyon,  3  Ves.  693,  per  Lord  Alvanley;  Hill  v.  Barclay,  18  Ves.  58,  C2, 


§  451,  (a)  Quoted  in  Franklin  v. 
Long,  191  Ala.  310,  68  South.  149; 
Baltimore  &  N.  Y.  R.  Co.  v.  Bouvier, 
70  N.  J.  Eq.  158,  62  Atl.  868.  Cited 
with  approval  in  Dodsworth  v. 
Dodsworth,  254  111.  49,  98  N.  E.  279 
(forfeiture  of  land  for  non-payment 
of  taxes,  where  delay  was  caused  by 
mistake  as  to  when  taxes  were  due, 
relieved  against) ;  McDowell  v.  Blue 
Ridge  &  A.  Ry.  Co.,  144  N.  C.  721, 
57  S.  E.  5'20;  North  Jersey  St.  R'y 
Co.  V.  Inhabitants  of  Tp.  of  South 
Orange,  58  N.  J.  Eq.  83,  43  Atl.  53; 
Noyes  v.  Anderson,  124  N.  Y.  175, 
21  Am.  St.  Rep.  657,  26  N.  E.  316. 
In  the  latter  case  the  plaintiff 
agreed  not  to  foreclose  a  mortgage 
during  defendant's  lifetime,  pro- 
vided defendant  should  pay  all 
taxes  within  thirty  days  from  time 
of  accrual.  Defendant  did  not  pay 
ene  assessment  in  time  because  she 
did  not  know  of  it,  but  she  event- 
ually paid.  It  was  held  that  equity 
would  relieve  her  from  the  forfeit- 
ure. In  Tibbetts  v.  Gate,  66  N.  H. 
550,   22    Atl.   559,   a  forfeiture  was 


provided  for  in  case  of  failure  to 
pay  all  taxes.  The  court  held  that 
relief  would  be  awarded  against  a 
forfeiture  incurred  for  non-payment 
of  taxes  of  which  the  devisee  was 
ignorant.  In  Lundin  v.  Schoeffel, 
167  Mass.  465,  45  N.  E.  933,  there 
was  a  provision  for  a  forfeiture  of 
a  lease  in  case  of  noise  in  making 
repairs  which  should  disturb  the 
performance  in  a  'theater.  The 
court  found  that  the  noise  made 
was  slight,  lasted  only  a  minute, 
and  that  plaintiff  did  not  know  that 
a  performance  was  going  on  at  the 
time.  Injunctive  relief  was  given 
"on  the  ground  of  accident  or  mis- 
take." In  Mactier  v.  Osborn,  146 
Mass.  399,  4  Am.  St.  Rep.  323,  15 
N.  E.  641,  a  lessee  agreed  to  keep 
the  property  insured  so  that  the  loss 
would  be  payable  to  the  lessor.  An 
assignee  renewed  the  insurance,  but 
through    mistake    the    loss    was    not 

§451,  (l»)  Cited  to  this  effect  in 
Hukill  V.  Myers,  36  W.  Va.  639,  15 
S.  E.  151. 


§  451  EQUITY    JURISPRUDENCE.  858 

cases,  and  upon  the  same  equitable  grounds,  if  there  has 
been  a  breach  of  the  agreement  sufficient  to  cause  a  for- 
feiture, and  the  party  entitled  thereto,  either  expressly  or 
by  his  conduct,  waives  it  or  acquiesces  in  it,  he  will  be  pre- 

per  Lord  Eldon;  Hannam  v.  South  London  Water  Co.,  2  Mer.  Gl ;  Bam- 
ford  V.  Creasey,  3  Giff.  675;  Wing  v.  Harvey,  5  De  Gex,  M.  &  G.  265; 
Duke  of  Beaufort  v.  Neeld,  12  Clark  &  F.  248;  Bridges  v.  Longman,  24 
Beav.  27 ;  Meek  v.  Carter,  6  Week.  Rep.  852.  In  Hill  v.  Barclay,  18  Ves. 
58,  Lord  Eldon  was  very  strongly  opposed  to  granting  relief  in  ordinary 
cases,  but  he  expressly  says  that  his  reasoning  and  conclusions  do  not 
apply  to  cases  of  accident,  surprise,  fraud,  etc. ;  as,  for  example,  the  for- 
feiture arising  from  a  lessee's  breach  of  a  covenant  to  repair,  the  effect 
of  the  weather  in  preventing  him,  or  if  a  permissive  want  of  repair,  the 
landlord  standing  by  and  looking  on  and  not  objecting.  Wing  v.  Harvey, 
5  De  Gex,  M.  &  G.  265,  is  a  good  illustration.  A  life  policy  contained  a 
condition  making  it  void  if  the  assured  went  beyond  Europe  without  a 
license.  The  assured  assigned  the  policy  and  took  up  his  residence  in 
Canada.  The  assignee,  on  paying  the  annual  premium  to  an  agent  of 
the  insurance  company,  infomied  him  that  the  assured  was  residing  in 
Canada.  The  agent  answei'ed  that  this  would  not  avoid  the  policy,  and 
continued  to  receive  the  premiums  without  objection  until  the  assured 
died.  Although  no  license  had  been  given,  the  lord  justice  held  that  the 
company  could  not  insist  upon  the  forfeiture;  the  assignee  had  been  mis- 
led by  the  company's  agent,  and  to  enforce  the  forfeiture  would  be  a 
"surprise,"  even  if  not  an  actual  fraud. 

made  payable  to  the  lessor.     It  was  grant  relief  from  a  forfeiture  unless 

held  that  equity  would  relieve  from  it   can   be   done  with   justice   to   the 

the  forfeiture.  other  party:  Kann  v.  King,  204  U.  S. 

Equity  may  relieve  from  the  for-  43,  51  L.  Ed.  360,  27   Sup.  Ct.   213. 

feiture  of  a  mining  lease  for  failure  "There  must  be  full  performance  of 

to    drill    a    well   within    a    specified  the  covenant  as  a  condition  of  relief. 

time,   where    there    has   been    fraud,  The  relief  is  against  the  forfeiture, 

accident    or    mistake,    if    'relief    is  on  the  ground  of  surprise,  not  against 

asked     within     a    reasonable     time:  the  contract  or  from  its  obligation. 

Westerman  v.  Dinsmore,  68  W.  Va.  We    do    not    take    away    either    the 

594,   71    S.   E.   250.     In   general,   see  right  to  have  the  delinquency  made 

Eaddatz   v.    Florence    Inv.    Co.,    147  good  or  the  power  to  forfeit  for  fu- 

Wis.  636,  133  N.  W.  1100;  McCaskill  ture    delinquencies.     The    covenants 

V.   Union  Naval  Stores   Co.,  59  Fla.  for    the    non-performance    of    which 

571,    52    South.    961;    E.    H.    Powers  forfeiture  has  been  declared  must  be 

Shoe   Co.   V.   Odd   Fellows   Hall   Co.,  performed,      and     that     fully      and 

133    Mo.   App.    229,   113   S.   W.   253.  promptly":  Wheeling  &  E.  G.  R.  Co. 

Even  where   accident   or  mistake  is  v.    Triadelphia,    58    W.    Va.    487,    4 

shown,  a  court  of  equity  should  not  L.  R.  A.    (N.   S.)   321,  52  S.  E.  499. 


859 


CONCERNING    PENALTIES    AND    FORFEITURES. 


§451 


eluded  from  enforcing  the  forfeiture,  and  equity  will  aid 
the  defaulting  party  by  relieving  against  it,  if  necessary. ^  « 
For  a  like  reason  a  court  of  equity  may  set  aside  or  dis- 
regard a  forfeiture  occasioned  by  a  failure  to  comply  with 
the  very  letter  of  an  agreement  when  it  has  nevertheless 
been  substantially  performed.^  d 

§  451,  2  In  many  such  cases  there  would  be  no  need  of  an  appeal  to 
equity,  since  the  breach  and  forfeiture  would  be  waived  at  law.  Most 
of  the  decided  cases  have  ai'isen  from  breaches  of  covenants  in  leases,  but 
the  rule  applies  as  well  to  all  other  agreements :  Bridges  v.  Longman,  24 
Beav.  27;  Croft  v.  Lumbly,  5  El.  &  B.  648;  Hughes  v.  Metropolitan  R'y 
Co.,  L.  R.  2  H.  L.  439;  Wing  v.  Harvey,  5  De  Gex,  M.  &  G.  265;  Lilly  v. 
The  Fifty  Associates,  101  Mass.  432;  Helme  v.  Philadelphia  Ins.  Co., 
61  Pa.  St.  107,  100  Am.  Dec.  621;  Gregg  v.  Landis,  19  N.  J.  Eq.  356,  21 
N.  J.  Eq.  494,  507. 

§  451,  3  Hagar  v.  Buck,  44  Vt.  285,  8  Am.  Rep.  368. 


See,  also,  Roche  v.  Hiss,  84  N.  J. 
Eq.  242,  93  Atl.  804. 

That  a  lessee's  mere  forgetfulnesa 
of  a  covenant  in  his  lease  is  not  a 
mistake  which  can  be  relieved 
against,  see  Barrow  v.  Trustees, 
[189]]  1  Q.  B.  417. 

See,  also,  in  general,  Kopper  v. 
Dyer,  59  Vt.  477,  59  Am.  Rep.  742, 
12  Atl.  4;  Hulett  v.  Fairbanks,  40 
Ohio  St.  233  (fraud);  Travelers'  Ins, 
Co.  V.  Brown  (Ala.),  35  South.  463; 
and  §§  826,  833,  post. 

§451,  (c)  The  text  is  quoted  in 
Priar  v.  Baldridge,  91  Ark.  133,  120 
S.  W.  989.  See  Robinson  v.  Cheney, 
17  Neb.  673,  24  N.  W.  378;  Hurst  v. 
Thompson,  73  Ala.  158.  See,  also, 
ante,  §  439,  note.  In  Pokegama 
Sugar  Pine  Lumber  Co.  v.  Klamath 
River  L.  &  I.  Co.,  96  Fed.  34,  a  lessor 
allowed  the  lessee  to  spend  a  large 
sum  of  money  on  the  property  after 
facts  sufficient  to  constitute  a  for- 
feiture had  occurred.  The  court 
lield  that  the  forfeiture  was  waived. 

In  Franklin  v.  Long,  191  Ala.  310, 
68  South.  149,  plaintiff  was  purchas- 


ing property  from  defendant  on  the 
installment  plan.  Plaintiff  defaulted 
in  one  payment,  and  defendant 
threatened  to  declare  all  due.  An 
agreement  of  settlement  was  reached 
and  the  property  was  placed  in  es- 
crow. Plaintiff  was  granted  an  in- 
junction to  prevent  defendant  from 
withdrawing  the  property  from  the 
escrow.  But  the  mere  fact  that  di- 
rectors of  a  corporation,  party  to  a 
contract,  know  that  the  other  party 
is  at  work  and  say  nothing  about 
insisting  on  a  forfeiture  is  no 
ground  for  estoppel:  Farmers'  Paw- 
nee Canal  Co.  v.  Pawnee  Water  Stor- 
age Co.,  47  Colo.  239,  107  Pac.  286. 
In  general,  see  McCue  v.  Bradbury, 
149  Cal.  108,  84  Pac.  993  (mortgagee 
assented  to  proposed  mode  of  pay- 
ment and  failed  to  make  objection 
to  tender,  although  tender  was  not 
in  strict  legal  form). 

§  451,  (d)  This  section  is  cited  to 
this  effect  in  Eastern  Oil  Co.  v, 
Coulehan,  65  W.  Va.  531,  64  S.  E. 
836.  Thus,  in  Bliley  v.  Wheeler, 
5  Colo.   App.  287,  38  Pac.   603,  one 


§  452  EQUITY   JURISPRUDENCE.  860 

§  452.  Forfeiture  Willful  or  Through  Negligence, — While 
a  defaulting  party  may  thus  acquire  a  right  to  the  equi- 
table relief  from  the  conduct  of  the  other  party,  he  may 
also  lose  the  right,  which  otherwise  would  have  existed,  as 
a  consequence  of  his  own  conduct.  In  a  case  where  an 
agreement  creates  a  mere  pecuniary  obligation,  so  that  a 
forfeiture  incurred  by  its  breach  would  ordinarily  be  set 
aside,  a  court  of  equity  will  refuse  to  aid  a  defaulting  party, 
and  relieve  against  a  forfeiture,  if  his  violation  of  the  con- 
tract was  the  result  of  gross  negligence,  or  was  willful  and 
persistent.  He  who  asks  help  from  a  court  of  equity  must 
himself  be  free  from  inequitable  conduct  with  respect  to 
the  same  subject-matter.^  ^     Having  thus  exhibited  the  doc- 

§  452,  1  Hancock  v.  Carlton,  6  Gray,  39 ;  Clarke  v.  Drake,  3  Chand. 
223;  Horsburg  v.  Baker,  1  Pet.  236.  In  Hancock  v.  Carlton,  6  Gray,  39, 
land  had  been  conveyed,  subject  to  certain  mortgages  which  the  grantee 
assumed  to  pay,  and  "on  condition  that  the  grantor  should  be  indemnified 
and  saved  harmless."  This  condition  having  been  broken  and  a  forfeiture 
thereby  incurred,  the  grantee  brought  suit  in  equity  to  set  it  aside.  It 
appeared  that  the  grantor  had  been  compelled  by  due  process  of  law  to 
pay  the  mortgages,  that  he  had  duly  notified  the  grantee  (the  plaintiff) 
of  these  legal  proceedings,  and  required  him  to  pay  the  mortgages,  but 
the  plaintiif  had  refused  to  do  so.  Upon  these  facts  it  was  held  that  the 
plaintiff  was  not  entitled  to  relief  against  the  forfeiture  thus  occasioned, 
although  in  refusing  to  pay  he  had  acted  under  a  mistaken  view  as  to 
his  own  liability.  It  may  be  doubted,  I  think,  whether  the  court  did  not 
push  the  doctrine  of  the  text  too  far,  since  the  breach  was  not  in  any  true 
sense  willful. 

party  claimed  a  forfeiture  for  158,  62  Atl.  868.  In  general,  see 
non-payment  of  an  installment  of  Kann  v.  King,  204  U.  S.  43,  51  L.  Ed. 
$17,  after  having  received  nearly  360,  27  Sup.  Ct.  213.  The  supreme 
$300.  There  was  some  dispute  as  to  court  of  California  in  Parsons  v. 
whether  the  $17  was  due.  The  court  Smilie,  97  Cal.  647,  32  Pac.  702,  in 
granted  relief,  saying  that  "courts,  construing  section  3275  of  the  Civil 
in  such  cases,  do  not  look  compla-  Code,  held  that  "willful"  forfeiture 
cently,  under  such  circumstances,  simply  means  one  voluntarily  in- 
upon  what  might  be  a  technical  for-  curred.  In  that  case  an  estate  was 
feiture  at  law,  but  clearly  inequi-  forfeited  for  breach  of  condition  sub- 
table  in  a  case  of  this  kind."  sequent  in  not  maintaining  a  lumber 
§  452,  (a)  See,  also,  §  856,  note.  yard.  Eelief  against  the  forfeiture 
This  section  i^  cited  in  Baltimore  &  was  denied.  In  N".  Y.  &  N.  E.  K.  E. 
N.  Y.  E.  Co.  v.  Bouvier,  70  N.  J.  Eq.  Co.  v.  City   of  Providence,  16  E.  I. 


mi 


CONCERNING    PENALTIES    AND    FORFEITURES. 


§453 


trine  in  its  general  form,  I  shall  briefly  describe  the  most 
important  instances  of  its  application,  namely:  to  condi- 
tions and  covenants  in  leases;  to  conditions  in  contracts  for 
the  sale  of  land;  to  particular  stipulations  in  other  con- 
tracts; to  the  forfeiture  of  shares  of  stock;  and  to  forfeit- 
ures created  by  statute. 

§  453.  Forfeitures  Arising  from  Covenants  in  Leases. — 
Where  a  lease  contains  a  condition  that  the  lessor  may 
re-enter  and  put  an  end  to  the  lessee's  estate,  or  even  that 
the  lease  shall  be  void,  upon  the  lessee's  failure  to  pay  the 
rent  at  the  time  specified,  it  is  well  settled  that  a  court  of 
equity  will  relieve  the  lessee  and  set  aside  a  forfeiture  in- 
curred by  his  breach  of  the  condition,  whether  the  lessor 
has  or  has  not  entered  and  dispossessed  the  tenant.  This 
rule  is  based  upon  the  notion  that  such  condition  and  for- 


746,  19  Atl.  759,  a  city  had  granted 
to  a  railroad  certain  easements  upon 
condition  that  certain  land  was  to  be 
filled  in.  The  grantee  failed  to  per- 
form, whereupon  the  city  took  pos- 
session and  made  the  filling.  Thirty 
years  later  relief  was  sought  on  the 
ground  that  the  city  could  be  com- 
pensated. Eelief  was  refused.  The 
case  of  South  Penn  Oil  Co.  v.  Edge!], 
48  W.  Va.  348,  86  Am.  St.  Rep.  43, 
37  S.  E.  596,  seems  hardly  in  accord 
with  the  general  rule  as  laid  down 
in  the  text.  By  the  contract  Mrs. 
Edgell  was  entitled  to  certain  gas 
free,  and  in  case  of  breach  a  forfeit- 
ure was  provided  for.  The  ofiicers 
of  the  oil  company  overlooked  this, 
demanded  payment,  and  upon  refusal 
shut  off  the  supply.  Mrs.  Edgell  de- 
clared a  forfeiture,  whereupon  the 
company  sued  to  set  it  aside.  Speak- 
ing of  the  failure  to  observe  the  con- 
tract, the  court  said:  "This  was  a 
matter  of  plain  negligence  on  the 
part  of  some  of  the  officers  or  coun- 
selors of  the  appellees,  for  they  had 
possession  of  a  copy  of  the  contract. 


and  by  proper  diligence  could  have 
been  fully  informed  of  its  contents." 
"The  breach  in  the  case  came  from 
a  negligent  mistake,  but  it  was  not 
willful  in  a  legal  sense.  To  be  so  it 
must  be  knowingly  committed."  The 
court  held  that  relief  would  be 
granted  because  "the  gas  was  a  ren- 
tal consideration  easily  ascertainable 
in  money."  See  monographic  note  on 
the  subject  of  relief  from  forfeitures 
in  86  Am.  St.  Rep.  48. 

Laches.— In  applications  for  relief 
from  forfeitures,  the  rule  of  laches 
ought  to  be  rigidly  applied.  Thus, 
relief  will  be  denied  where  the  plain- 
tiffs have  permitted  a  material 
change  in  the  value  and  condition  of 
the  property  to  occur,  and  the  rights 
of  third  persons  to  intervene,  before 
they  sought  relief.  Conduct  indicat- 
ing an  intention  to  await  the  result 
of  operations  under  a  lease  and  to 
make  an  election  depend  upon  re- 
sults is  forbidden  by  the  rule  against 
laches:  Westerman  v.  Dinsmore,  68 
W.  Va.  594,  71  S.  E.  250. 


§  454  EQUITY    JURISPRUDENCE.  862 

f eiture  are  intended  merely  as  a  security  for  the  payment  of 
money.i  * 

§  454.  Equity  will  not,  under  ordinary  circumstances, 
relieve  against  a  forfeiture  arising  from  the  breach  of  other 

§  453,  1  By  the  original  doctrine  of  equity,  the  relief  might  be  granted 
within  any  reasonable  time  after  a  breach,  and  even  after  an  ejectment; 
by  the  English  statute,  the  suit  in  equity  must  be  brought  within  six 
months  after  the  lessor  has  recovered  a  judgment  in  an  action  of  eject- 
ment: Bowser  v.  Colby,  1  Hare,  109,  128,  130-132;  Home  v.  Thompson, 
1  Sausse  &  S.  615;  Hill  v.  Barclay,  16  Ves.  403,  405,  18  Ves.  58-64; 
Eaton  V.  Lyon,  3  Ves.  692,  693;  White  v.  Warner,  2  Mer.  459;  Brace- 
bridge  V.  Buckley,  2  Price,  200;  Reynolds  v.  Pitt,  19  Ves.  140;  Atkins  v. 
Chilson,  11  Met.  112;  Sanborn  v.  Woodman,  5  Cush.  360;  Stone  v.  Ellis, 
9  Cush.  55;  Palmer  v.  Ford,  70  111.  369. 

If,  however,  the  lessee  has  also  broken  other  covenants  besides  the  one 
for  rent,  by  reason  of  which  he  would  be  liable  to  an  eviction,  and  against 
which  no  relief  could  be  given,  then  a  court  of  equity  will  not  set  aside 
the  forfeiture  incurred  by  a  violation  of  the  condition  concerning  rent, 
since  such  relief  would  be  wholly  nugatoiy :  Bowser  v.  Colby,  1  Hare,  109 ; 
Home  V.  Thompson,  1  Sausse  &  S.  615;  Wadman  v.  Calcraft,  10  Ves.  67; 
Davis  V,  West,  12  Ves.  475;  Nokes  v.  Gibbon,  3  Drew.  693. 

§  453,  (a)  Quoted  in  Sunday  Lake  caused  a  present  injury  or  increase 

Min.  Co.  V.  Wakefield,  72  Wis.  204,  of  risk  to  the  lessors,  as  in  the  case 

39    N.    W.    136;    also    in    Shaffer    v.  of   waste,    non-repair,    or   non-insur- 

Marks,     241     Fed.     139;     Wylie     v.  ance.     In    such    a    case    a    court    of 

Kirby,  115  Md.  282,  Ann.  Cas.  1913A,  equity  is  not  required  to  refuse  relief 

825,  80  Atl.  962.     In  the  case  of  Lun-  against   a   forfeiture,   but  may  look 

din  V.   Schoeffel,   167   Mass.   465,   45  into    the    circumstances,    and    deter- 

N.   E.   933,   one  breach   consisted   in  mine   whether,    on    the    whole,   it   is 

the  tenant's  not  fitting  up  the  prem-  just  and  right  that  such  relief  should 

ises   promptly.     The  court  said:   "If  bp  granted."    In  Shriro  v.  Paganucci, 

the  lessee's  failure  had  been  an  omis-  113  Me.   213,  93   Atl.  358,  the  lease 

sion  to  pay  rent  promptly  as  it  be-  provided  that  on  failure  to  pay  rent, 

came  due,  it  is  plain  that  a  court  of  whether  demanded  or  not,  the  lessor 

equity  might  relieve  against  a  for-  could  expel  the  lessee.     After  a  ten- 

feiture   on   this   ground,   though  the  ancy  of  four  and  one-half  years  the 

omission  was  even  willful.     But  the  lessee  was  thirty-six  hours  in  default 

lessee's    failure    in    this     case    was  on  a  payment.     It  was  held  that  the 

merely  an   omission  to   do  promptly  lessee   should   be   relieved   from   the 

something  which  was  only  useful  to  forfeiture.     In   Creamery   Dairy   Co. 

the   lessors  by   way  of   security   for  v.     Electric     Park     Co.     (Tex.     Civ. 

the  future  payment  of  rent.     It  was  App.),   138   S.   W.    1106,   the   tenant 

not  like  a  case  where  the   omission  tendered  four  months'  arrearage,  but 


863  CONCEENING   PENALTIES    AND   FOEFEITURES.  §  454 

covenants  contained  in  a  lease,  on  the  ground  that  no  exact 
compensation  can  be  made.  Among  these  covenants  for  a 
breach  of  which  no  relief  can  ordinarily  be  given  is  that 
to  repair  generally,  or  to  make  specific  repairs,  or  to  lay 
out  a  certain  sum  of  money  in  repairs  or  erections  within  a 
specified  time;!^  the  covenant  to  insure  ;2  the  covenant  not 
to  assign  without  license  i^^  and  in  other  covenants  of  a 

§  454,  1  Gregory  v.  Wilson,  9  Hare,  683,  689 ;  Nokes  v.  Gibbon,  3  Drew. 
681;  Hill  V.  Barclay,  16  Ves.  403,  406,  18  Ves.  58,  61,  per  Lord  Eldon; 
Bracebridge  v.  Buckley,  2  Price,  215;  Croft  v.  Goldsmid,  24  Beav.  312; 
the  earlier  eases  of  Hack  v.  Leonard,  9  Mod.  90,  per  Lord  Macclesfield, 
and  Sanders  v.  Pope,  12  Ves.  282,  290,  per  Lord  Erskine,  which  laid  down 
a  different  rule,  have  been  ovei'turued  by  the  subsequent  authorities  above 
cited. 

§  454,  2  Gregory  v.  Wilson,  9  Hare,  683;  Green  v.  Bridges,  4  Sim.  96; 
Reynolds  v.  Pitt,  19  Ves.  134;  Bracebridge  v.  Buckley,  2  Price,  218;  White 
V.  Warner,  2  Mer.  459;  Havens  v.  Middleton,  10  Hare,  641.  An  English 
statute  authorizes  the  court  to  relieve  against  forfeiture  incurred  by  a 
breach  of  a  covenant  to  insure,  in  certain  specified  cases;  22  &  23  Vict., 
chap.  35,  §§4,  6,  7,  8. 

§  454,  3  Hill  v.  Barclay,  18  Ves.  36,  per  Lord  Eldon;  Wafer  v.  Mocate, 
9  Mod.  112;  Wadman  v.  Calcraft,  10  Ves.  67;  Lovat  v.  Lord  Ranelagh, 
3  Ves.  &  B.  24;  Bracebridge  v.  Buckley,  2  Price,  200,  221;  Baxter  v.  Lan- 

the  landlord  refused  to  accept.  A  W.  1038,  an  owner  of  a  department 
temporary  injunction  restraining  the  store  leased  a  department  under  an 
cancellation  of  the  lease  was  held  agreement  for  a  share  in  the  re- 
proper,  the  court  saying  that  the  ceipts.  It  was  held  that  equity 
only  injury  to  the  lessor  was  the  would  relieve  from  a  forfeiture  oc- 
loss  of  opportunity  to  make  a  better  casioned  by  failure  to  report  a  small 
lease,  and  that  this  does  not  appeal  part  of  the  receipts, 
to  a  court  of  equity.  In  general,  see  The  text  is  cited  in  Attala  Min. 
Kann  v.  King,  204  U.  S.  43,  51  L.  Ed.  &  Mfg.  Co.  v.  Winchester,  102  Ala. 
360,  27  Sup.  Ct.  213;  Pheasant  v,  184,  14  South.  565;  O'Byrne  v.  Jebe- 
Hanna,  63  W.  Va.  613,  60  S.  E'.  618  les  &  Colias  Confectionery  Co.,  165 
(forfeiture  of  mining  lease  for  fail-  Ala.  183,  51  South.  633.  See,  also, 
ure  to  pay  royalties  promptly  re-  Johnson  v.  Lehigh  Val.  Traction  Co., 
lieved  against).     Equity  will  also  in-  130  Fed.  932. 

terfere    when    the    forfeiture    is    of  §  454,  (a)  This  portion  of  the  text 

money  deposited  to  secure  perform-  is   quoted   in   O'Byrne   v.   Jebeles   & 

ance  of  covenant  to  pay  rent:  Yuen  Colias    Confectionery    Co.,    165    Ala. 

Suey   V.  Fleshman,   65   Or.   606,   133  183,  51  South.  633. 

Pac.     803.     In     Milwaukee     Boston  §  454,  (b)     See,    also,    Barrow    v. 

Store  V.  Katz,  153  Wis.  492,  140  N.  Trustees,  [1891]   1  Q.  B.  417  (cove- 


§  455  EQUITY    JURISPRUDENCE.  864 

special  nature.^  ^  It  should  be  observed,  however,  that  in 
all  cases  of  this  class  relief  may  be  given  when  the  breach 
was  the  result  of  fraud,  mistake,  accident,  surprise,  and  the 
like,  or  was  acquiesced  in  or  waived  by  the  lessor.^  ^ 

§  455.  From  Contracts  for  the  Sale  of  Land. — AVhere  an 
ordinary  contract  for  the  sale  of  land  is  so  drawn  that  the 
vendee's  estate,  interest,  and  rights  under  it  are  liable  to 
be  forfeited  and  lost  upon  his  failure  to  pay  the  price  at  the 
time  specified,  the  question  whether  equity  will  relieve  him 
ought  to  be  a  very  plain  and  simple  one;  but  in  the  face 
of  the  authorities,  it  is  impossible  to  be  answered  in  any 

sing,  7  Paige  350.  But  in  Grigg  v.  Landis,  21  N.  J.  Eq.  494,  514,  it  was 
held  that  a  clause  in  a  contract  of  sale  that  the  vendee  should  not  assign 
did  not  come  within  the  meaning  and  operation  of  this  rule. 

§  454,  4  To  cultivate  the  land  in  a  husbandlike  manner :  Hills  v.  Row- 
land, 4  De  Gex,  M.  &  G.  430 ;  not  to  carry  on  a  particular  trade :  Maeher 
V.  Foundling  Hospital,  1  Ves.  &  B.  187;  not  to  suffer  persons  to  use  a 
private  way  over  part  of  the  land  leased :  Descarlett  v.  Dennett,  9  Mod.  22. 

§  454,  5  See  ante,  §  451,  and  cases  in  note. 

nant     against     underletting).      But  developed,     except     for     a     purpose 

such    relief    was    given    in     E'.    H.  foreign     to     the     agreement."     See, 

Powers  Shoe  Co.  v.  Odd  Follows  Hall  also,  Hukill  v.  Guflfey,  37  W.  Va.  425, 

Co.,  133  Mo.  App.  229,  113  S.  W.  253  16  S.  E.  544.     Equity  will  not  relieve 

(citing  this  paragraph  of  the  text),  from    a    forfeiture   because    of   non- 

where    the    lessor    had    allowed    the  payment  of  taxes  when  the   failure 

assignee  to  make  valuable  improve-  to   perform    has   led    to    a    tax   sale, 

ments  before  declaring  a  forfeiture.  ripening  into  a  prima  facie  irredeem- 

§  454,  (c)  In  Monroe  V.  Armstrong,  able     title     held    adversely    to     the 

96  Pa.  St.  307,  there  was  a  covenant  lessor.     In  other  words,  equity  "will 

for    forfeiture    in    ease   of    delay    in  not  require  an  owner  to  risk  the  loss 

working    under    an   oil    lease.     The  of  his  property  by  compelling  him  to 

court   said:    "Forfeiture   for   non-de-  engage    in    a    contest   involving   the 

velopment   or   delay,   is  essential    to  validity  of  an  irredeemable  tax  sale, 

private  and  public  interests  in  rela-  for  the  purpose  of  endowing  the  ten- 

tion    to    the    use    and    alienation    of  ant   with   the  right,   if   the   tax  sale 

property.     In     such    cases     as     this,  be  held  invalid,  to  pay  the  taxes  and 

equity  follows  the  law.     In  general,  thus    be    relieved    of    a   forfeiture": 

equity  abhors  a  forfeiture,   but  not  Kann  v.   King,  204  U.   S.  43,  51  L. 

when   it   works  equity   and   protects  Ed.  360,  27  Sup.  Ct.  213. 

a   landowner   from    the   laches    of   a  §454,    (d)    The   text  is   quoted   in 

lessee  whose  lease  is  of  no  value  till  Shaffer  v.  Marks.  241  Fed.  139. 


865 


CONCERNING   PENALTIES    AND    FORFEITUEES. 


§455 


general  and  certain  manner.  To  examine  this  question  in 
detail  would  require  me  to  anticipate  the  full  discussion  of 
the  doctrine  concerning  time  as  the  essence  of  contracts 
in  their  specific  enforcement.  I  shall  therefore  simply  state 
the  general  conclusion  derived  from  the  decided  cases.  It 
is  well  settled  that  where  the  parties  have  so  stipulated  as 
to  make  the  time  of  payment  of  the  essence  of  the  contract, 
within  the  view  of  equity  as  well  as  of  the  law,  a  court  of 
equity  cannot    relieve  a  vendee  who    has    made    default.^ 


§  455,  (a)  Quoted  in  Granville 
Lumber  Co.  v.  Atkinson,  234  Fed. 
424;  Fratt  v.  Daniels- Jones  Co.,  47 
Mont.  487,  133  ?ac.  700;  Souter  v. 
Witt,  87  Ark.  593,  128  Am.  St.  Rep. 
40,  113  S.  W.  800.  The  text  is  cited 
in  Westerman  v.  Dinsmore,  68  W. 
Va.  594,  71  S.  E.  250;  Spedden  v. 
Sykes,  51  Wash.  267,  98  Pac.  752; 
Gray  v.  Pelton,  67  Or.  239,  135  Pac. 
755;  Maffet  v.  Oregon  &  C.  R.  Co., 
46  Or.  443,  80  Pac.  489;  Krisky  v. 
Bryan  (Ind.  App.),  115  N.  E,  70. 
See  Talkin  v.  Anderson  (Tex.),  19 
S.  W.  852;  Sanders  v.  Carter,  91 
Ga.  450,  17  S.  E.  345;  Aikman  v. 
Sanborn  (Cal.),  52  Pac.  729;  Alli- 
son V.  Dunwody,  100  Ga.  51,  28  S.  E. 
651;  Drown  v.  Ingels,  3  Wash.  St. 
424,  28  Pac.  759;  Moore  v.  Durnam, 
63  N.  J.  Eq.  96,  51  Atl.  449;  Buck- 
len  V.  Hasterlik,  155  111.  423,  40  N.  E. 
561;  Womack  v.  Coleman  (Minn.), 
93  N.  W.  663;  Keefe  v.  Fairfield 
(Mass.),  68  N.  E.  342.  The  Califor- 
nia rule  is  well  discussed  in  Glock 
V.  Howard  &  Wilson  Colony  Co.,  123 
Cal.  1,  69  Am.  St.  Rep.  17,  43  L.  R.  A. 
199,  55  Pac.  713.  This  section  of  the 
text  is  quoted  with  approval,  and 
earlier  California  cases,  especially 
Drew  V.  Pedlar,  87  Cal.  443,  22  Am. 
Bt.  Rep.  257,  25  Pac.  749,  are  distin- 
guished. See,  also.  Equitable  Loan 
&  Security  Co.  v.  Waring,  117  Ga. 
1—55 


599,  97  Am.  St.  Rep.  176,  44  S.  E. 
320.  The  same  rule  applies  in  a  con- 
tract for  the  exchange  of  land,  un- 
less the  stipulated  sum  is  larger  than 
the  obligation:  Westbay  v.  Terry, 
83  Ark.  144,  103  S.  W.  160.  Com- 
pare Calbeck  v.  Ford,  140  Mich.  48, 
103  N.  W.  516;  Beury  v.  Fay,  73  W. 
Va.  460,  80  S.  E.  777.  See,  also, 
Madler  v.  Silverstone,  55  Wash.  159, 
34  L.  R.  A.  (N.  S.)  1,  104  Pac.  165 
(agreement  to  forfeit  and  pay  upon 
breach).  In  Howard  v.  Adkins,  1G7 
Ind,  184,  78  N.  E.  665,  an  agreement 
for  an  exchange  of  merchandise  for 
land  contained  a  provision  for  for- 
feiture of  $500  in  case  of  breach  by 
either  party.  The  provision  was 
held  to  call  for  liquidated  damages. 
Where  the  vendor  forbears  for  more 
than  three  years  to  declare  a  for- 
feiture for  non-payment  of  install- 
ments, he  cannot  declare  a  forfeiture 
until  he  has  made  time  of  the  es- 
sence by  notice:  Walker  v.  McMur- 
chie,  61  Wash.  489,  112  Pac.  500. 
See,  also.  Gray  v.  Pelton,  67  Or.  239, 
135  Pac.  755;  Baerenklau  v.  Peerless 
Realty  Co.,  80  N.  J.  Eq.  26,  83  Atl. 
375.  Compare  Kilmer  v.  British 
Columbia  Orchard  Lands,  Ltd., 
[1913]  A.  C.  319.  In  Wrenn  v.  Uni- 
versity Land  Co.,  65  Or.  432,  46  L. 
R.  A.  (N.  S.)  897,  133  Pac.  627,  the 
contract   provided    that   no    interest 


§  455  EQUITY   JURISPRUDENCE.  866 

With  respect  to  this  rule  there  is  no  doubt;  the  only  diffi- 
culty is  in  determining  when  time  has  thus  been  made  essen- 
tial. It  is  also  equally  certain  that  when  the  contract  is 
made  to  depend  upon  a  condition  precedent, — in  other 
words,  when  no  right  shall  vest  until  certain  acts  have  been 
done,  as,  for  example,  until  the  vendee  has  paid  certain  sums 
at  certain  specified  times, — then,  also,  a  court  of  equity  will 
not  relieve  the  vendee  against  the  forfeiture  incurred  by  a 
breach  of  such  condition  precedent.^  But  when,  on  the 
other  hand,  the  stipulation  concerning  payment  is  only  a 
condition  subsequent,  a  court  of  equity  has  power  to  relieve 
the  defaulting  vendee  from  the  forfeiture  caused  by  his 
breach  of  this  condition,  upon  his  paying  the  amount  due, 
with  interest,  because  the  clause  of  forfeiture  may  be  re- 
garded as  simply  a  security  for  the  payment. <=  It  is  there- 
fore held,  in  a  great  number  of  cases,  that  the  forfeiture 
provided  for  by  such  a  clause,  on  the  failure  of  the  pur- 
chaser to  fulfill  at  the  proper  time,  will  be  disregarded  and 

should  be  charged  on  payments  paid  77  S.  E.  866.     A  party  who  is  unable 

when   due,   but  that  interest  should  to   show   a   good   title   cannot   insist 

be  charged    if    payments    were    not  upon  a  forfeiture:  Tharp  v.  Lee,  25 

made    promptly.     It   was    held    that  Tex.  Civ.  App.  439,  62  S.  W.  93. 

the  provision  was  valid.     In  general,  §  455,  (b)  Quoted  in  Woods  v.  Me- 

see  Potomac  Power  Co.  v,  Burchell,  Graw  (C.  C.  A.),  127  Fed.  914;  also 

109   Va.   676,  64  S.   E.  982.     A   sum  in  Granville  Lumber  Co.  v.  Atkinson, 

deposited  on  a  sale  of  land  will  not  234  Fed.  424;  Bartlesville  Oil  &  Im- 

be    considered    liquidated    damages  provement  Co.  v.  Hill,  30  Okl.  829, 

where   there   is   no   language   in   the  121  Pac.  208;  Souter  v.  Witt,  87  Ark. 

contract  evidencing  the  intention  of  593,  128  Am.  St.  Eep.  40,  113  S.  W. 

the   parties   to   consider  it   as   such:  800.     The  text  is  cited  to  this  point 

Kellam    v.   Hampton,    58    Tex.   Civ.  in  Gordon  Tiger  Mining  &  Eeduction 

App.    484,    124    S.    W.    970.     It    has  Co.  v.  Brown,  56  Colo.  301,  138  Pac. 

been  held,  in  a  few  cases,  however,  51;  Bluthenthal  v.  Atkinson,  93  Ark. 

that  if   the   damages  can  be  ascer-  252,  124  S.  W.  510  (option  to  renew 

tained,  relief  will  be  awarded  even  lease;  failure  to  give  notice  within 

in  case  of  a  forfeiture  in  a  contract  the  time  specified). 

for  the  sale  of  land:  Barnes  v.  Cle-  §455,    (c)    Cited   to   this   effect   in 

ment,  12   S.   D.   270,  81   N.   W.   301;  Donnelly  v.  Eastes,  94  Wis.  390,  69 

Easton  v.  Cressey,  100  Cal.  75,  34  Pac.  N.  W.  157.     In  general,  on  the  sub- 

622;  Allison  V.  Cocke's  Ex'rs,  106  Ky.  ject    of    this    paragraph,  see    Pom. 

763,  51  S.  W.  593.     Compare  Ould  v.  Equitable  Remedies. 
Spartanburg  Eealty  Co.,  94  S.  C.  184, 


867  CONCERNING    PENALTIES    AND    FORFEITURES.  §  456 

set  aside  by  a  court  of  equity,  unless  such  failure  is  inten- 
tional or  willful.  This  conclusion  is  in  plain  accordance 
with  the  general  doctrine  of  equity  in  relation  to  relief 
against  forfeitures ;  but  it  cannot  be  regarded  as  a  universal 
rule.  Under  exactly  these  circumstances  many  American 
decisions  have  treated  such  a  clause  as  rendering  the  stipu- 
lated time  of  payment  essential,  and  as  therefore  binding 
according  to  its  letter,  and  have  refused  to  give  any  relief.  ^ 

§  456.  From  Other  Contracts. — In  all  other  special  con- 
tracts containing  provisions  for  a  forfeiture,  the  same  gen- 
eral principle  must,  of  course,  be  applied,  although  there 
may  be  some  doubt  or  difficulty  in  the  application.  It  is 
clear  that  if  the  contract  be  of  such  a  nature  that  a  clause 
for  the  payment  of  a  certain  sum  upon  its  violation  would 
be  pronounced  a  provision  for  liquidated  damages,  then  a 
court  of  equity  would  grant  no  relief  against  a  forfeiture  in- 
curred by  its  non-performance.  On  the  other  hand,  if  the 
obligation  created  by  the  contract  is  substantially,  though 
perhaps  indirectly,  a  pecuniary  one,  then  a  court  of  equity 
undoubtedly  will  aid  the  defaulting  party  by  setting  aside 
a  forfeiture.  Between  these  two  extremes  there  is  a  mass 
of  agreements  with  respect  of  which  the  action  of  the  courts 
in  giving  relief  may  perhaps  be  regarded  as  somewhat  dis- 
cretionary. The  mere  fact  that  a  certain  sum  stipulated 
to  be  paid  upon  a  violation  would  be  treated  as  a  penalty 
is  not  of  itself  decisive  in  favor  of  a  relief  from  forfeiture 
in  similar  cases.     The  examples  given  in  the  note  will  serve 

§  455,  1  See  Pomeroy  on  Specific  Performance,  §§  335,  336,  379;  Wells 
V.  Smith,  2  Edw.  Ch.  78,  7  Paige,  22,  24;  Edgerton  v.  Peckham,  11  Paige, 
352,  359;  Sanborn  v.  Woodman,  5  Cush-.  36;  Decamp  v.  Feay,  5  Serg.  & 
R.  323,  326,  9  Am.  Dec.  372;  Remington  v.  Irwin,  14  Pa.  St.  143,  145; 
Jones  V.  Robbins,  29  Me.  361,  50  Am.  Dec.  593;  Clark  v.  Lyons,  25  111. 
105;  Snyder  v.  Spaulding,  57  111.  480,  484;  McClartey  v.  Gokey,  31  Iowa, 
505 ;  Steele  v.  Branch,  40  Cal.  3 ;  Farley  v.  Vaughn,  11  Cal.  227 ;  Royan 
V.  Walker,  1  Wis.  527;  as  examples  of  cases  where  court  has  refused  to 
interfere,  see  Benedict  v.  Lynch,  1  Johns.  Ch.  370,  7  Am.  Dec.  484;  Grey 
V.  Tubbs,  43  Cal.  359.  Such  decisions  as  these  seem  to  ignore  the  equi- 
table principle  of  relief  from  penalties  and  forfeitures. 


§  456  EQUITY    JURISPRUDENCE.  868 

to  illustrate  the  action  of  courts  in  dealing  witli  such  agree- 
ments.i  * 

§  456,  1  In  Steele  v.  Branch,  40  Cal.  3,  a  contract  for  the  sale  of  land 
i'ontained  a  condition  that  if  the  vendee  did  not  pay  off  a  mortgai;:e  upon 
the  premises  when  it  fell  due,  the  contract  should  be  void  and  the  land 
revert  to  the  vendor.  This  condition  was  held  to  he  a  security  for  the 
performance  of  an  obligation  simply  pecuniary,  and  the  vendee  was  re- 
lieved from  the  forfeiture  occasioned  by  its  default.     In  Gregg  v.  Landis^ 

19  N.  J.  Eq.  850,  21  N.  J.  Eq.  494,  514,  the  question  was  carefully 
examined.  A  contract  for  the  sale  of  land  stipulated  that  the  vendee 
should  plant  shade-trees  in  a  specified  manner  before  a  certain  date, 
should  erect  a  house  for  occupation  within  a  year,  and  should  bring  at 
least  two  and  a  half  acres  under  cultivation  every  year,  and  in  default 
of  any  of  these  provisions  the  vendor  should  be  entitled  to  take  back  the 
land,  etc.  The  court  held  that  the  forfeiture  caused  by  the  vendee's  non- 
performance could  not  be  set  aside.  In  City  Bank  v.  Smith,  3  Gill  &  J. 
265,  a  contract  concerning  lottery  tickets  provided  that  no  holder  of  a 
ticket  should  be  entitled  to  a  prize  unless  he  presented  his  claim  within 
a  year;  and  it  was  held  that  the  presentation  within  a  year  was  thus  made 
a  condition  precedent,  and  a  court  could  not  relieve  a  ticket-holder  who 
had  failed  to  comply  with  this  req  Irement.  See,  also,  as  to  conditions 
precedent  in  contracts,  Flagg  v.  Hunger,  9  N.  Y.  483,  500;  Faunce  v. 
Burke,  16  Pa.  St.  469,  55  Am.  Dec.  519.  In  Henry  v.  Tupper,  29  Vt. 
358,  where  a  deed  was  conditioned  for  the  perfomiance  of  a  covenant  by 
the  grantee  to  maintain  the  grantor  with  food  and  lodging,  it  was  held 
that  equity  would  relieve  the  grantee  from  a  forfeiture  occasioned  by  his 
unintentional  non-performance.  The  opinion  in  this  case  is  able  and  in- 
structive, and  contains  an  exhaustive  review  of  the  decisions,  English  and 
American.  It  was  said  that  whether  relief  would  be  granted  or  not  in 
such  cases  was  discretionary  with  the  court.    See,  also,  Dunklee  v.  Adams, 

20  Vt.  421,  50  Am.  Dec.  44 ;  Austin  v.  AiL«tin,  9  Vt.  420 ;  Hagar  v.  Buck, 
44  Vt.  285,  8  Am.  Rep.  368. 

§456,  (a)  In  Sanford  v.  First  Nat.  L.  R.  A.  211,  18  S.  W.  262.  But, 
Bank  of  Belle  Plaine,  94  Iowa,  680,  on  the  other  hand,  where  the  agree- 
63  N.  W.  459,  relief  was  refused  ment  provided  for  a  forfeiture  of  all 
against  a  forfeiture  contained  in  an  wages  in  case  of  the  employee  leav- 
agreement  of  partnership.  Belief  ing  without  notice,  the  stipulation 
has  been  refused  to  an  employee  who  has  been  held  unreasonable  and  re- 
agreed  to  a  forfeiture  of  a  definite  lief  granted.  Schmieder  v.  Kings- 
amount  of  wages  in  case  of  a  breach  ley,  6  Misc.  Rep.  107,  26  N.  Y.  Supp. 
of  the  contract  of  employment.  Ten-  31;  affirmed,  7  Misc.  Rep.  744,  27 
nessee  Mfg.  Co.  v.  James,  91  Tenn.  (7  N.  Y.  Supp.  1124.  In  Woodbury  v. 
Pick.)    154,  30  Am.  St.  Rep.  865,  15  Turner,  Day  &  Woolworth  Mfg.  Co., 


869 


CONCERNING   PENALTIES    AND   FORFEITURES. 


§451 


§  457.  Of  Shares  of  Stock. — A  forfeiture  of  the  shares 
of  stock  in  a  corporation,  regularly  and  duly  incurred  by 
the  stockholder's  or  subscriber's  failure  to  pay  the  calls 
or  installments  thereon  according  to  the  charter  or  by-laws 
of  the  company,  will  not  be  set  aside  or  relieved  against 
by  a  court  of  equity;  and  the  same  is  true  of  a  forfeiture 
of  public  and  governmental  stock  by  reason  of  a  failure  to 
comply  with  the  terms  of  the  loan  concerning  payment.^  * 

§  457,  1  Sparks  v.  Company,  etc.,  of  Liverpool  Water  Works,  13  Ves. 
428,  433,  434,  per  Sir  William  Grant,  M.  R.;  Pendergast  v.  Turton,  1 


96  Ky.  459,  29  S.  W.  295,  relief  was 
refused  against  a  forfeiture  in  a  con- 
tract for  the  sale  of  a  business.  It 
has  been  held  that  no  relief  can  be 
had  against  a  forfeiture  of  a  part- 
nership interest  for  violation  of  an 
agreement  not  to  use  liquor  in  ex- 
cess: Henderson  v.  Murphree,  109 
Ala.  556,  20  South.  45.  In  Eureka 
Light  &  Ice  Co.  v.  City  of  Eureka 
(Kan.  App.),  48  Pac.  935,  a  street 
railway  company  deposited  a  sum  of 
money  to  be  forfeited  in  case  of  fail- 
ure to  comply  with  a  municipal  ordi- 
nance. The  court  refused  to  relieve. 
But  in  Wilson  v.  Mayor,  etc.,  of  Bal- 
timore, 83  Md.  203,  55  Am.  St.  Rep. 
339,  34  Atl.  774,  a  deposit  with  a 
municipal  corporation  to  secure  the 
fulfillment  of  a  contract  for  supplies 
was  held  to  be  a  penalty,  and  a  re- 
covery of  the  amount  so  deposited 
was  allowed.  In  Fessman  v."  Seeley 
(Tex.  Civ.  App.),  30  S.  W.  268,  the 
plaintiff  had  paid  a  sum  for  the 
schooling  of  his  boy.  The  boy  be- 
haved in  such  a  manner  as  to  war- 
rant expulsion,  and  the  plaintiff 
thereupon  sued  to  recover  the 
amount  paid.  It  was  held  that  he 
was  not  entitled  to  this  relief.  For- 
feiture of  a  life  insurance  policy  for 
non-payment  of  premiums  at  a  stipu- 
lated time  will  not  be  relieved 
against.     Klein   v.   New   York   Life 


Ins.  Co.,  104  U.  S.  88;  Knickerbocker 
Life  Ins.  Co.  v.  Dietz,  52  Md.  16; 
Iowa  Life  Ins.  Co.  v.  Lewis,  187  U. 
S.  335,  23  Sup.  Ct.  126;  Manhattan 
Life  Ins.  Co.  v.  Wright  (C.  C.  A.), 
126  Fed.  82.  In  Gates  v.  Parmly,  93 
Wis.  294,  66  N.  W.  253,  67  N.  W. 
739,  a  vendor  who  had  deeded  prop- 
erty agreed  to  forfeit  half  the  pur- 
chase price  if  he  should  not  show  a 
good  title.  The  court  held  the 
amount  to  be  excessive  and  granted 
relief.  In  Nichols  v.  Haines,  98  Fed. 
692,  39  C.  C.  A.  235,  a  provision  for 
forfeiture  of  a  deposit  for  non-per- 
formance of  a  contract  to  purchase 
a  crop  of  oranges  was  held  to  be  such 
that  the  court  would  grant  relief, 
the  damages  being  capable  of  ascer- 
tainment. And  see  Kerslake  v.  Me- 
Innis,  113  Wis.  659,  89  N.  W.  895. 
In  general,  see  Farmers'  Pawnee 
Canal  Co.  v.  Pawnee  Water  Storage 
Co.,  47  Colo.  239,  107  Pac.  286; 
Wkeeling  &  E.  G.  E.  Co.  v.  Triadel- 
phia,  58  W.  Va.  487,  4  L.  R.  A.  (N. 
S.)  321,  52  S.  E.  499. 

§457,  (a)  Burham  v.  S.  F.  Fuse 
Mfg.  Co.,  76  Cal.  26,  17  Pac.  339; 
Southern  B.  &  L.  Ass'n  v.  Anniston 
L.  &  T.  Co.,  101  Ala.  582,  46  Am.  St. 
Rep.  138,  29  L.  R.  A.  120,  15  South. 
123  (forfeiture  of  stock  in  building 
and  loan  association). 


§§458,459  EQUITY    JURISPRUDENCE.  870 

§  458.  When  Imposed  by  Statute. — Finally,  -whenever 
any  forfeiture  is  provided  for  by  a  statute,  to  be  incurred  on 
the  doing  or  not  doing  some  specified  act,  equity  can  afford 
no  relief  from  it,  and  the  same  is  true  of  a  statutory  penalty. 
A  court  of  equity  has  no  power  to  disregard  or  set  aside  the 
express  terms  of  statutory  legislation,  however  much  it  may 
int'srfere  with  the  operation  of  common-law  rules. ^  ^ 

§  459.  Equity  wiU  not  Enforce  Forfeitures. — The  second 
question  which  it  was  proposed  to  consider  is.  When  will 
a  court  of  equity  by  its  decree  actively  enforce  or  carry 

Younge  &  C.  Ch.  98,  110-112;  Naylor  v.  South  Devon  R'y  Co.,  1  De  Gex 
&  S.  32;  Sudlow  v.  Dutch,  etc.,  R'y  Co.,  21  Beav.  43;  Germantown  R'y, 
etc.  V.  Fitler,  60  Pa.  St.  124,  131,  90  Am.  Dec.  546;  Small  v.  Herkimer 
Mfg.  Co.,  2  N.  Y.  335.  Of  course,  if  there  is  any  fraud  or  other  inequi- 
table or  illegal  conduct  in  the  proceedings  by  which  the  calls  are  made  or 
the  shares  are  condemned,  equity  may,  on  that  ground,  relieve  the  stock- 
holder or  subscriber  from  the  forfeiture,  either  by  enjoining  the  proceed- 
ings of  the  corporation  officials,  or  by  setting  them  aside  if  they  have  been 
completed. 

§  458,  1  Peachy  v.  Duke  of  Somerset,  1  Strange,  447,  452-456 ;  Keat- 
ing V.  Sparrow,  1  Ball  &  B.  373;  Powell  v.  Redfield,  4  Blatchf.  45. 

§  458,  (a)  This  paragraph  is  quoted  suit,    equity    may    enforce    penalties 

in   State    v.   McBride,    76     Ala.   51;  created  by  liquor   nuisance   statute, 

cited  with  approval  in  State  v.  Hall,  In    general,    see,    also,    McCreary    v. 

70  Miss.  678,  13  South.  39.     In  this  First  Nat.  Bank,  109  Tenn.   128,  70 

case     the     court    held     that     equity  S.  W.  821.     But    in    Mississippi    R. 

"should  have  given  full  relief  by  fol-  Com.  v.  Gulf  &  S.  I.  R.  Co.,  78  Miss. 

lowing   the   law   and   enforcing   the  750,  29  South.  789,  a  state  railroad 

penalty."     Cited    and    distinguished  commission  brought  a  bill  to  enforce 

in  Wheeling  &  E.  G.  E.  Co.  v.  Tria-  a  penalty  against  a  railroad  for  ehar- 

delphia,  58  W.  Va.  487,  4  L.  R.  A.  ging  excessive  rates.     The  court  re- 

(N.  S.)   321,  52  S.  E.  499.     Cited  in  fused  to  enforce,  and  held  that  the 

Keystone  Lumber-Yard  v.  Yazoo   &  state  cannot  compel  chancery  to  take 

M.  V.  R.  Co.,  96  Miss.  116,  Ann.  Cas.  jurisdiction  in  such  a  case. 

1912A,    801,    50    South.   445,   to    the  See   Clark   v.   Barnard,   108   U.   S. 

effect  that  equity  may  enforce  a  pen-  436,  2  Sup.  Ct.  878,  and  cases  cited; 

alty    for    the    purpose    of    complete  Smith  v.  Mariner,  5  Wis.  551,  68  Am. 

relief,  if  it  is  imposed  by  statute  and  Dec.    73.     But    equity    may    relieve 

does     not     arise     out     of     contract.  where  the  forfeiture  is  invalid:  Vir- 

Cited  in  State  v.  Marshall,  100  Miss.  den  v.  Board  of  Pilot  Com'rs.,  8  Del. 

626,  Ann.  Cas.  1914A,  434,  56  South.  Ch.  1,  67  Atl.  975. 
792,   holding   that   in   an    injunction 


871 


CONCERNING   PENALTIES    AND    FORFEITURES. 


§459 


into  effect  a  forfeiture?  The  general  answer  to  this  ques- 
tion is  easy  and  clear.  It  is  a  well-settled  and  familiar 
doctrine  that  a  court  of  equity  will  not  interfere  on  behalf 
of  the  party  entitled  thereto,  and  enforce  a  forfeiture,  but 
will  leave  him  to  his  legal  remedies,  if  any,  even  though 
the  case  might  be  one  in  which  no  equitable  relief  would 
be  given  to  the  defaulting  party  against  the  forfeiture.* 


§459,  (a)  Quoted  in  McClellan  v. 
Coffin,  93  Ind.  456;  Olden  v.  Sass- 
man  (N.  J.  Eq.),  57  Atl.  1075;  Mo- 
berly  v.  City  of  Trenton  (Mo.),  81 
S.  W.  169;  United  States  v.  Washing- 
ton Improvement  &  D.  Co.,  189  Fed. 
674;  Harrison  v.  Woodward,  11  Cal. 
App.  15,  103  Pac.  933;  Boss  Tin  Mine 
V.  Cherokee  Tin  Mining  Co.,  103 
S.  C.  243,  88  S.  K  8.  Cited  with 
approval  in  Donnelly  v.  E'astes,  94 
Wis,  390,  69  N.  W.  157;  Michigan 
Pipe  Co.  V.  Fremont  Ditch,  Pipe 
Line  &  Eeservoir  Co.,  Ill  Fed.  284, 
49  C.  C.  A.  324;  Worthington  v. 
Moon,  53  N.  J.  Eq.  46,  30  Atl.  251; 
Craig  V.  Hukill,  37  W.  Va.  520,  16 
S.  E.  363;  Negaunee  Iron  Co.  v.  Iron 
Cliffs  Co.  (Mich.),  96  N.  W.  468; 
Armitage  v.  Mt.  Sterling  Oil  &  Gas 
Co.  (Ky.),  80  S.  W.  177;  Morris  v. 
Kettle  (N.  J.  Eq.),  34  Atl.  376;  In 
re  Larkey,  214  Fed.  867;  Bell  v. 
Scranton  Coal  Mines,  59  Wash.  659, 
110  Pac.  628;  Tarr  v.  Stearman,  264 
HI.  110,  105  N.  E.  957;  Dresser  v. 
Hartford  Life  Ins.  Co.,  80  Conn.  681, 
70  Atl.  39;  Mason  v.  Fichner,  120 
Minn.  185,  139  N.  W.  485;  Higgin- 
botham  v.  Frock,  48  Or.  129,  120  Am. 
St.  Rep.  796,  83  Pac.  536;  Lackland 
r.  Hadley,  260  Mo.  539,  169  S.  W. 
275;  Deerfield  Lumber  Co.  v.  Lyman, 
89  Vt.  201,  94  Atl.  837;  Headley  v. 
Hoopengarner,  60  W.  Va.  626,  55  S. 
E.  744;  Mash  v.  Bloom,  130  Wis.  366, 
118  Am.  St.  Rep.  1028,  110  N.  W. 
203,   268.     This  portion   of   the   text 


is  cited  in  United  States  v.  Oregon  & 
C.  R.  Co.,  186  Fed.  861,  but  the  case 
holds  that  equity  may  enforce  a  for- 
feiture when  it  is  equitable  to  do  so. 
See,  also,  Hagerty  v.  White,  69  Wis. 
317,  34  N.  W.  92;  Bucklen  v.  Haster- 
lik,  155  111.  423,  40  N.  E.  561;  Missis- 
sippi R.  Com.  V.  Gulf  &  S.  I.  R.  Co., 
78  Miss.  750,  29  South.  789;  Hors- 
burg  V.  Baker,  1  Pet.  232;  Hodges  vT 
Buell  (Mich.),  95  N.  W.  1078;  Broad- 
nax  v.  Baker,  94  N.  C.  675,  55  Am. 
Rep.  633;  Kampman  v.  Kampman,  98 
Ark.  328,  135  S.  W.  905;  Work  v. 
Fidelity  Oil,  Gas  &  Mineral  Co.,  79 
Kan.  118,  98  Pac.  801;  John  v.  Mc- 
Neal,  167  Mich.  148,  132  N.  W.  508; 
Sanitary  Dist.  of  Chicago  v.  Chicago 
Title  &  Trust  Co.,  278  El.  529,  116  N. 
E.  161;  Farmers'  Pawnee  Canal  Co.  v. 
Pawnee  Water  Storage  Co.,  47  Colo. 
239,107  Pac.  286;  Thornton  v.  City  of 
Natchez,  88  Miss.  1,  41  South.  498; 
Pyle  V.  Henderson,  65  W.  Va.  39,  63  S. 
E.  762;  Newton  v.  Kemper,  66  W.  Va. 
130,  66  S.  E.  102;  McGraw  Oil  & 
Gas  Co.  V.  Kennedy,  65  W.  Va.  595, 
28  L.-  R.  A.  (N.  S.)  959,  64  S.  E. 
1027.  Thus,  a  court  of  equity  does 
not  lend  its  aid  to  divest  an  estate 
for  a  breach  of  a  condition  subse- 
quent and  thereby  enforce  a  forfeit- 
ure: Birmingham  v.  Lesau,  77  Me. 
494,  1  Atl.  51;  Donnelly  v.  Eastes, 
94  Wis.  390,  69  N.  W.  157;  Goleonda 
Northern  Ry.  v.  Gulf  Lines  Connect- 
ing R.  R.,  265  111.  194,  106  N.  E.  818; 
Springfield  &  N.   E.  Traction  Co.  v. 


§  459  EQUITY    JURISPRUDENCE.  872 

The  few  apparent  exceptions  to  this  doctrine  are  not  real 
exceptions,  since  they  all  depend  upon  other  rules  and  prin- 
ciples.^  The  r'  -ons  of  the  doctrine  are  to  be  found  in 
the  universal  principle  that  a  court  of  equity  refuses  to  aid 

§  459,  1  Popham  v.  Bampfield,  1  Vern.  83 ;  Carey  v.  Bertie,  2  Vern. 
339;  United  States  v.  McRae,  L.  R.  4  Eq.  327;  Livingston  v.  Tompkins, 
4  Johns.  Ch.  415,  431,  8  Am.  Dec.  598;  Baxter  v.  Lansing,  7  Paige,  350, 
353;  Gordon  v.  Lowell,  21  Me.  251;  Smith  v.  Jewett,  40  N.  H.  530,  534; 
Atlas  Bank  v.  Nahant  Bank,  3  Met.  581;  Warner  v.  Bennett,  31  Conn. 
461,  468;  Oil  Creek  R.  R.  v.  Atlantic  &  G.  W.  R.  R.,  57  Pa.  St.  65; 
Meig's  Appeal,  62  Pa.  St.  28,  35,  1  Am.  Rep.  372 ;  McKim  v.  White  Hall 
Co.,  2  Md.  Ch.  510;  White  v.  Port  Huron,  etc.,  R.  R.,  13  Mich.  356; 
Michigan  Bank  v.  Hammond,  1  Doug.  (Mich.)  527;  Lawl  v.  Hyde,  39 
Wis.  353;  Eveleth  v.  Little,  16  Me.  374,  377;  Clarke  v.  Drake,  3  Chand. 
253,  259;  Fitzhugh  v.  Maxwell,  34  Mich.  138;  Beecher  v.  Beecher,  43 
Conn.  556.  In  Oil  Creek  R.  R.  v.  Atlantic,  etc.,  R.  R.,  57  Pa.  St.  65, 
Mr.  Justice  Sharswood  explained  the  equitable  grounds  of  this  universal 
doctrine  as  follows:  A  lease  had  been  granted  containing  a  condition  that 
the  lessee  should  build  a  certain  railroad  within  a  prescribed  time,  and 
the  plaintiffs  sought  to  enforce  a  forfeiture  of  the  lease  on  account  of 
the  defendant's  non-performance  of  this  condition.  It  was,  therefore, 
veiy  plainly  a  case  Avhere  the  court  could  not,  in  accordance  with  the 
settled  rule,  set  aside  the  forfeiture  at  the  suit  of  the  lessee.     The  court 

"Warrick,    249    111.    470,    Ann.     Cas.  the   latter  from  removing  buildings 

1912 A,  187,  94  N.  E.  933;  Geffert  v.  from  the  premises.     But  in  MeCIel- 

Geffert,   98    Kan.   57,   157   Pac.   384;  Ian  v.  Coffin,  93  Ind.  456,  it  is  held 

Spies  V.   Arvondale  &  C.  R.   Co.,  60  that  equity  will  interfere  to  remove 

W.  Va.   389,   55  S.  E.  464;   nor  will  a  cloud  on  title,  even  though  the  for- 

it  entertain  a  complaint  for  the  pur-  feiture   of   some   interest   may   indi- 

pose  of  inserting  a  forfeiture  clause  reetly   result.     See,   also,   Sawyer   v. 

in  an  absolute  deed:  Mills  v.  Evans-  Cook,   188   Mass.   163,   74  N.  E.   356. 

ville  Seminary,  52  Wis.  669,  9  N.  W.  Equity  will  not  divest  a  vested  es- 

925.     In  McCormick  v.  Rossi,  70  Cal.  tate    by   enforcing   a   forfeiture    for 

474,   15   Pac.   35,   plaintiff   sought   a  the    breach    of   a    subsequent    condi- 

decree  that  defendant  had  forfeited  tion:  Craig  v.  Hukill,  37  W.  Va.  520, 

all   rights  under   a  contract  for  the  16  S.  E.  363.     See,  also,  Pike's  Peak 

sale  of  land  by  non-payment  of  the  Power  Co.   v.   City  of  Colorado,  105 

purchase  price.     It  was  held  that  the  Fed.    1,   44    C.    C-   A.   33;    Henry    v. 

relief    should   be    denied,   for   other-  Mayer   (Ariz.),   53   Pac.   590;   Morse 

wise  a  forfeiture  would  be  enforced.  v.  O'Reilly,  Fed.  Cas.  No.   9858.     It 

A     similar    result    was     reached    in  has   been   held   that   a   bill   to   quiet 

Crane  v.  Dwyer,  9  Mich.  350,  80  Am.  title  cannot  be  maintained  to  enforce 

Dec.  87,  where  the  vendor,  after  de-  a  condition  subsequent  contained  in 

fault   by    vendee,    sought    to    enjoin  a   deed:   Brown  v.   Chicago   &   N.  W. 


S73  CONCERNING    PENALTIES    AND    FORFEITURES.  §  459 

any  party  who,  by  the  remedy  which  he  seeks  to  obtain 
against  his  adversary,  is  not  himself  doing  equity,  or  who 
does  not  come  before  the  court  ''with  clean  hands," — the 
same  principle  upon  which  the  court  acts  when  it  refuses 

said:  "A  bill  for  the  specific  enforcement  of  a  contract  is  an  appeal  to 
the  conscience  of  the  chancellor.  He  exercises  upon  the  question  jjre- 
sented  a  sound  discretion,  under  all  the  circumstances  of  the  case,  for 
the  most  part  untrammeled  by  rule  or  precedent.  If  the  bargain  is  a 
hard  or  unconscionable  one,  if  the  terms  are  unequal,  if  the  party  calling 
for  his  aid  is  seeking  an  undue  advantage,  he  declines  to  interfere.  There- 
fore it  is  that  although  courts  of  equity  will  not,  in  general,  relieve  against 
a  forfeiture,  unless  it  be  in  the  case  of  non-payment  of  rent,  where  an 
exact  and  just  compensation  can  be  made  by  decreeing  to  the  landlord 
the  arrears  of  his  rent,  with  interest  and  costs,  yet  they  never  lend  tlieir 
assistance  to  the  enforcement  of  one,  but  leave  the  party  to  his  legal  reme- 
dies. More  especially  is  this  the  case  where  the  contract  has  been  sub- 
stantially carried  out,  but  its  literal  fulfillment  has  been  prevented  by 
uncontrollable  circumstances.  It  is  unnecessary  to  cite  authorities  in  sup- 
port of  these  positions.  They  underlie  all  the  cases  which  abound  upon 
the  subject,  and  have  been  canonized  in  the  standard  elementary  works. 
They  commend  themselves  to  every  man's  common  sense  of  reason  and 
justice,  in  view  of  the  special  objects  which  courts  of  equity  have  been 
constituted  to  effectuate." 

K'y  Co.  (Iowa),  82  N.  W.  1003.  In  53  N.  J.  Eq.  46,  30  Atl.  251,  the 
Harper  v.  Tidholm,  155  111.  370,  40  plaintiff  sought  to  enjoin  a  trespass 
N.  E.  575,  a  vendee  of  land  recorded  by  defendant,  who  was  removing 
his  contract  for  a  deed  and  then  clay  from  plaintiff's  land.  Plaintiff 
made  default.  The  court  held  that  maintained  that  defendant  had  for- 
complainant  might  maintain  a  bill  to  feited  the  right  to  remove  the  clay 
remove  the  cloud  on  the  title.  "In  already  dug  by  not  taking  it  in  time, 
affording  this  relief,  it,  of  course,  The  court  held  that  it  would  not  en- 
became  necessary  for  the  court  to  de-  force  the  forfeiture  by  the  injunc- 
termine  whether  the  contract  was  tion.  In  Drake  v.  Laeoe,  157  Pa.  St. 
still  subsisting  or  not;  and  the  effect  17,  27  Atl.  538,  the  plaintiff  sought 
of  this  decree  was  to  find  that  it  had  a  decree  of  forfeiture  for  non-pay- 
been  terminated,  in  accordance  with  ment  of  royalties.  The  court  held 
its  terms,  by  the  acts  of  the  parties  that  by  long  delay  in  asserting 
themselves,  and  that  it  was  therefore  rights  the  lessor  had  waived  the 
null  and  void,  and  a  cloud  upon  the  right  to  this.  In  Field  v.  Ashley, 
title."  A  party  cannot  come  into  79  Mich.  231,  44  N.  W.  602,  a  bill 
equity  to  enforce  a  forfeiture  by  in-  was  brought  for  an  injunction 
junction:  Coe  v.  Columbus,  P.  &  I.  against  a  vendee  who  had  not  ac- 
R.  Co.,  10  Ohio  St.  372,  75  Am.  Dec.  quired  title  to  prevent  a  disposition 
518.     Thus,  in  Worthington  v.  Moon,  of  the  property.     The  court  said:  "It 


460 


EQUITY    JURISPRUDElSrCE. 


874 


to  specifically  enforce  a  contract  which  is  unequal,  unjust, 
or  has  any  inequitable  features  and  incidents.'' 

§  460.     There  are,  in  fact,  no  exceptions    to    this    doc- 
trine; those  which  appear  to  be  exceptions  are  not  so  in 


is  established  beyond  controversy 
that  courts  of  chancery  in  this  state 
have  jurisdiction  in  cases  of  this 
character.  Such  bills  are  analogous 
to  foreclosure  bills,  and  do  not  seek 
to  enforce  a  forfeiture. 

§459,  (b)  Quoted  in  Ross  Tin 
Mine  v.  Cherokee  Tin  Mining  Co., 
103  S.  C.  243,  88  S.  E.  8.  This  sec- 
tion is  quoted  as  a  whole  in  Chero- 
kee Construction  Co.  v.  Bishop,  86 
Ark.  489,  126  Am.  St.  Rep.  1098,  112 
S.  W.  189.  The  last  sentence  is 
quoted  in  Telegraphone  Corp.  v. 
Canadian  Telegraphone  Co.,  103  Me. 
444,  69  Atl.  767. 

In  a  few  recent  cases  the  courts 
have  held  that  equity  may  enforce 
a  forfeiture  when  it  would  be  more 
inequitable  not  to  do  so.  Thus  in 
Liddle  v.  Cook,  209  Fed.  182,  126 
C.  C.  A.  130,  it  was  held  "that  in 
cases  otherwise  cognizable  in  equity 
there  is  no  insuperable  objection  to 
the  enforcement  of  a  forfeiture,  if 
it  is  more  consonant  with  principles 
of  right,  justice  and  morality  than 
to  withhold  equitable  relief.  The 
complainant  will  be  entitled  to  re- 
lief, however,  only  on  such  a  strong 
case  that  the  general  indisposition 
of  courts  of  equity  to  aid  in  the  en- 
forcement of  a  forfeiture  is  over- 
come." See,  also,  Van  Sice  v.  Ibex 
Mining  Co.,  173  Fed.  895,  97  CCA. 
587.  In  Lindeke  v.  Associates  Realty 
Co.,  146  Fed.  630,  77  C.  C  A.  56,  the 
principle  was  applied  in  a  ease  where 
a  corporation  tenant  failed  to  per- 
form a  covenant  to  build  a  five-story 
building  within  five  years.     The  les- 


sor notified  the  tenant  that  he 
claimed  a  forfeiture.  Then  the  com- 
pany became  bankrupt,  the  trustee 
refused  to  perform,  and  was  about 
to  sell  its  rights  under  the  leasehold. 
It  was  held  that  as  the  purchaser 
would  not  be  liable  for  damages  for 
an  antecedent  breach,  and  as  the 
dividend  which  the  lessor  might  re- 
ceive in  bankruptcy  would  be  far 
from  an  adequate  compensation,  a 
forfeiture  should  be  decreed. 

Mining,  Oil  and  Gas  Leases. — 
These  principles  were  applied  in 
Risch  V.  Burch,  175  Ind.  621,  95  N.  E. 
123,  in  an  action  to  forfeit  a  lease 
of  oil  wells  where  the  lessee  had 
done  no  work  and  had  paid  nothing. 
The  court  held  that  such  contracts 
stand  in  a  class  by  themselves  and 
that  the  general  rule  that  equity  will 
not  decree  a  forfeiture  does  not  ap- 
ply. In  Indiana  Oil,  Gas  &  Develop- 
ment Co,  V.  McCrory,  42  Okl.  136, 
140  Pac.  610,  the  court  intimated 
that  under  certain  circumstances  a 
forfeiture  of  an  oil  well  might  be 
decreed;  but  under  the  circum- 
stances of  the  particular  case  where 
it  appeared  that  the  lessor  had  been 
paid  $10,000  in  royalties,  the  court 
refused  to  cancel  the  lease  on  ac- 
count of  bad  judgment  in  doing  the 
work,  or  even  reckless  management 
of  the  property  by  a  subtenant.  In 
St.  Louis  Union  Trust  Co.  v.  Gallo- 
way Coal  Co.,  193  Fed.  106,  a  suit  to 
forfeit  a  mining  lease  for  breach  of 
covenants,  the  court  held  that  the 
failure  to  pay  royalties  was  not  a 
ground    for    declaring    a    forfeiture 


875 


CONCERNING    PENALTIES   AND    FOKFEITURES. 


§460 


reality.*  Thus  a  court  of  equity  may,  by  its  restraining 
decree  or  injunction,  compel  the  observance  of  stipulations 
in  the  nature  of  conditions  by  which  some  restraint  is  im- 
posed upon  the  use  or  occupation  of  land  conveyed,  such 
as  the  provisions  in  a  deed  by  which  the  grantee  is  for- 
bidden to  build  in  a  certain  manner,  or  to  use  the  prem- 
ises for  certain  purposes,  thereby  creating  a  servitude  in 


where  there  is  no  bad  faith  and  de- 
fendant is  solvent.  The  court  also 
held  that  neither  the  failure  to  prop- 
erly develop  the  mine  nor  to  work 
continuously  was  a  ground  for  de- 
claring a  forfeiture  when  the  proper 
method  was  largely  a  matter  of  judg- 
ment and  no  fraud  or  bad  faith  was 
shown.  That  a  mining  lease  might 
be  declared  forfeited  was  held  in 
Cherokee  Construction  Co.  v.  Bishop, 
86  Ark.  489,  126  Am.  St.  Rep.  1098, 
112  S.  W.  189.  In  Brewster  v.  Lan- 
yon  Zinc  Co.,  140  Fed.  801,  72  C.  C. 
A.  213,  the  court,  in  its  syllabus, 
shows  facts  authorizing  the  relief: 
"A  forfeiture  of  an  oil  and  gas  lease 
was  incurred  under  circumstances 
which  do  not  entitle  the  lessee  to  re- 
lief in  equity.  Although  actually 
terminated  by  the  fault  of  the  lessee 
and  the  assertion  of  a  forfeiture  by 
the  lessor,  the  lease  appears,  as 
spread  upon  the  public  records  and 
as  claimed  by  the  lessee,  to  be  still 
effective  as  a  disposal  of  all  the  oil 
and  gas  on  the  lessor's  land.  It  em- 
barrasses, if  it  does  not  prevent,  the 
exercise  of  the  right  to  make  other 
disposition  of  these  minerals,  and 
this  at  a  time  when  they  are  being 
exhausted  by  the  lawful  multiplica- 
tion and  operation  of  wells  on  sur- 
rounding lands.  The  lessor  is  in  pos- 
session, save  of  a  small  portion  of 
the  land  occupied  by  the  lessee  in  the 
operation  of  a  single  gas  well  which 
it    has   drilled.     The     state     statute 


permits  the  defeated  party  in  eject- 
ment to  demand  and  obtain  a  second 
trial  as  matter  of  right.  Held,  that 
a  bill  disclosing  these  facts  states  a 
case  which  calls  for  a  measure  of 
relief  not  attainable  at  law,  and 
which  entitles  the  lessor  to  a  decree 
giving  effect  to  the  forfeiture  by  its 
establishment  as  matter  of  record 
and  by  the  cancellation  of  the  lease 
as  a  cloud  upon  the  title."  Mere  de- 
lay in  paying  royalties,  where  no 
damage,  is  not  sufficient  to  author- 
ize the  court  in  declaring  a  forfeit- 
ure: Pheasant  v.  Hanna,  63  W.  Va. 
613,  60  S.  E.  618. 

§  460,  (a)  Quoted  in  Moberly  v. 
City  of  Trenton  (Mo.),  81  S.  W.  169; 
Spies  V.  Arvondale  &  C.  E.  Co.,  60 
W.  Va.  389,  55  S.  K  464,  Cited  with 
approval  to  effect  that  there  are  no 
exceptions  to  the  rule  in  Craig  v. 
Hukill,  37  W.  Va.  520,  16  S.  E.  363; 
and  cited  in  Cherokee  Construction 
Co.  v.  Bishop,  86  Ark.  489,  126  Am. 
St.  Rep.  1098,  112  S.  W.  189;  Dresser 
v.  Hartford  Life  Ins.  Co.,  80  Conn. 
681,  70  Atl.  39;  Tarr  v.  Stearman, 
264  111.  110,  105  N.  E.  957;  Mason  v. 
Fichner,  120  Minn.  198,  139  N.  W. 
485;  Lackland  v.  Hadley,  260  Mo. 
539,  169  S.  W.  275.  In  Negaunee 
Iron  Co.  V,  Iron  Cliffs  Co.  (Mich.),  96 
N.  W.  468,  however,  it  is  held  that 
equity  may  recognize  a  forfeiture 
when  it  is  only  an  incident  of  a  past 
transaction. 


§  460  EQUITY    JUEISPRUDENCE.  876 

favor  of  adjacent  land  of  the  grantor.  Compelling  tlie  per- 
formance of  such  a  stipulation,  which  perhaps  may  be  in 
the  form  of  a  condition,  by  restraining  its  violation,  is 
plainly  not  the  enforcement  of  a  forfeiture.^  Again,  a  pro- 
vision in  the  form  of  a  condition  may  be  specifically  enforced 
as  though  it  was  a  simple  covenant,  but  without  any  for- 
feiture. The  agreement  is  thus  treated  as  though  it  was 
not  a  condition,  and  its  specific  performance  is  in  fact  the 
very  reverse  of  a  forfeiture.^ 


SECTION  n. 

CONCERNING  ELECTION. 

ANALYSIS. 

§  461.     Questions  stated. 
§§  462-4:65.     Rationale  of  the  doctrine  discussed. 

§  463.     In  the  Eoman  law. 

§  464.     Foundation,  the  presumed  intention  of  the  donor. 

§  465.     The  true  foundation  is  the  principle,  He  who  seeks  equity  must 
do  equity. 
§§  466-470.     Meaning,  extent,  and  effects  of  the  doctrine. 

§  466.     Election  in  conformity  with  instrument  of  donation. 
§§467,468.     Election  in  opposition  thereto;  rules;  compensation. 

§  469.     No  election  unless  compensation  can  be  made. 

§  470.     Applies  to  all  instruments  of  donation. 
§§471-505.     Applications;  classes  of  cases  in  which  the  necessity  for  an  elec- 
tion does  or  does  not  arise. 

§472,     Fundamental  rule;  what  creates  the  necessity  for  an  election. 
§§  473-475.     Subordinate  rules  of  interpretation. 

§§473,474.     Donor  has  only  a  partial  interest;  evidence  of  intention  not  ad- 
missible; a  general  gift  raises  no  election. 

§  475.     Other  special  rules  of  interpretation. 

§  460,  1  Gibert  v,  Peteler,  38  N.  Y.  165,  97  Am.  Dec.  785 ;  Trustees, 
etc.  V.  Lynch,  70  N.  Y.  440,  26  Am.  Rep.  615,  and  cases  cited;  Lattimer 
V.  Livermore,  72  N.  Y.  147 ;  Badger  v.  Boardman,  16  Gray,  559 ;  Whitney 
V.  Union  R'y,  11  Gray,  359,  71  Am.  Dec.  715 ;  Linzee  v.  Mixer,  101  Mass. 
512;  Dorr  v.  Harrahan,  101  Mass.  531,  3  Am.  Rep.  398. 

§  460,  2  Livingston  v.  Sickles,  8  Paige,  398,  7  Hill,  253 ;  Carpenter  v. 
Catlin,  44  Barb.  75;  Leach  v.  Leach,  4  Ind.  628,  58  Am.  Dec.  642. 


877  CONCERNING   ELECTION.  §  461 

§§  476-486.  First  class:  Donor  gives  property  wholly  another's. 

§  477.  Ordinary  case,  gift  of  specific  property. 

§§  478-480.  Under  appointments  in  pursuance  of  powers. 

§§  481-486.  Where  testator  has  attempted  to  give  property  by  a  will  which 
is  ineffectual. 

§  482.  Infancy  or  coverture  of  testator. 

§  483.  Will  valid  as  to  personal,  invalid  as  to  real,  estate. 

§  484.  Will  invalid  as  to  property  in  another  state  or  country. 

§  485.  Will  devising  after-acquired  lands. 

§  486.  Will  of  copyholds. 

§§487-505.  Second  class:   Donor  gives  property  in  which  he  has  a  partial 
interest. 

§  488.  The  general  doctrine. 

§  489.  Donor  owns  only  an  undivided  share. 

§  490.  Donor  owns  only  a  future  interest. 

§  491.  Devise  of  lands  encumbered. 

§§492-502.  Dower;    widow's  election  between  dower  and  gifts  hj  her  hus- 
band's will. 

§  493.  The  general  rule. 

§  494.  Contrary  legislation  in  various  states. 

§§  495-502.  Classes  of  testamentary  dispositions. 

§  496.  Express  declaration. 

§  497.  Devise  of  a  part  of  testator's  land  to  the  widow,  and  the  rest  to 
others. 

§  498.  Devise  to  the  widow  for  life. 

§  499.  Devise  in  trust  to  sell,  or  with  a  power  of  sale. 

§  500.  Gift  of  an  annuity,  etc.,  to  widow,  charged  upon  the  lands  devised 
to  others. 

§  501.  Devise  with  express  power  of  occupying,  leasing,  etc. 

§  '502.  Devise  to  widow  and  others  in  equal  shares. 

§§  503-505.  Election  in  devises  of  community  property. 

§  506.  The  remaining  questions  stated. 

§§507-510.  Who  may  elect;  married  women;  infants;  lunatics. 

§§511,512.  Eights  and  privileges  of  persons  bound  to  elect. 

§  513.  Time  of  election ;  state  statutes, 

§§514,515.  Mode  of  election,  express  or  implied;  conduct  amounting  to  an 

election, 

§§516,517,  Effects  of  an  election. 

§§  518,  519.  Equitable  jurisdiction  in  matters  of  election, 

§  461.  Questions  Stated.^ — As  I  have  already  said  in 
the  preceding  chapter,  the  equitable  doctrine  of  election 
originates  in  inconsistent  or  alternative  gifts,  with  the  in- 

§461,  (a)  This  chapter  is  cited,  62  W.  Va.  231,  57  S.  E'.  811.  See- 
generally,  in  Moore  v.  Baker,  4  Ind.  tions  461  et  seg.  are  cited  in  Beetson 
App.  115,  51  Am.  St.  Rep.  203,  30  v.  Stoops,  186  N.  Y.  456,  9  Ann.  Gas. 
N.  E.  629;  and  in  Tolley  v.  Poteet,  953,   79   N.  E.  731.     This  paragraph 


§  461  EQUITY    JURISPRUDENCE.  878 

tention,  either  expressed  or  implied,  that  one  shall  be  the 
substitute  for  the  other,  A  court  of  equity,  therefore,  act- 
ing upon  the  fundamental  principle  that  he  who  seeks  equity- 
must  do  equity,  as  explained  in  a  former  section,  declares 
that  the  donee  is  not  entitled  to  both  benefits,  but  to  the 
choice  of  either, — to  an  election  between  them.i  There  are 
two  cases,  differing  in  their  circumstances,  but  depending 
upon  this  one  broad  principle,  which  are  to  be  considered, 
although  the  first  of  them  only  is  usually  included  under 
the  name  "election";  the  second  will  more  properly  be 
treated  of  under  the  title  of  satisfaction.  1.  The  owner  of 
an  estate,  m  an  instrument  of  donation,  either  will  or  deed, 
uses  language  with  reference  to  the  property  of  another, 
which,  if  that  property  were  his  own,  would  amount  to  an 
effectual  disposition  of  it  to  a  third  person ;  and  by  the  same 
instrument  gives  a  portion  of  his  own  estate  to  that  same 
proprietor  whose  rights  of  ownership  he  had  thus  assumed 
to  transfer.  Under  these  circumstances,  an  obligation  rests 
upon  that  proprietor  either  of  relinquishing  (at  least  to  the 
extent  of  indemnifying  those  whom  he  disappoints)  the 
benefit  conferred  on  him  by  the  instrument,  if  he  asserts 
his  own  inconsistent  proprietary  rights;  or  if  he  accepts 
that  benefit,  of  completing  the  intended  disposition,  by 
transferring  to  the  third  person  that  portion  of  his  own 
property  which  it  purports  to  effect. 2  There  is  a  particular 
branch  of  this  case  in  which  the  doctrine  of  election  may 
arise,  not  because  a  party  has  attempted  to  transfer  prop- 
erty not  his  own,  but  where  a  testator  has  attempted  to 
dispose  of  some  of  his  oiun  property  by  means  of  a  will 

§461,  1  See  ante,  §395;  Mr.  Swanstou's  note  to  Dillon  v.  Parker,  1 
Swanst.  394;  Snell's  Equity,  178. 

§  461,  2  Mr.  Swanston's  note  b  to  Dillon  v.  Parker,  1  Swanst.  394 ; 
Snell's  Equity,  178. 

is  cited  in  Sorenson  v.  Carey,  96  Couts,  42  Tex.  Civ.  App.  515,  98 
Minn.  202,  104  N.  W.  958.  Sections  S.  W.  233  (reversed  on  appeal,  100 
461,    462,    are    cited    in    Holland    v.       Tex.  232,  98  S.  W.  236). 


879  CONCERNING   ELECTION.  §  462 

ineffectual  for  that  purpose. ^  2.  If  the  person  to  whom, 
by  an  instrument  of  donation,  a  benefit  is  given,  possesses 
at  the  same  time  a  previous  claim  against  the  donor,  and  an 
intention  appears  that  he  shall  not  both  enjoy  the  benefit 
and  enforce  the  claim,  the  same  equitable  doctrine  requires 
the  donee  to  elect  between  his  original  and  his  substituted 
rights ;  the  gift  being  designed  as  a  satisfaction  of  the  claim, 
he  cannot  accept  the  former  without  renouncing  the  latter.^ 
It  is  to  the  first  of  these  two  eases  that  the  doctrine  of  ' '  elec- 
tion," technically  so  called,  applies,  which  will  be  examined 
in  the  present  section. 

§  462.  Rationale  of  the  Doctrine. — The  essential  facts 
presenting  an  occasion  for  the  doctrine  of  election  are: 
A  gives  to  B  property  belonging  to  C,  and  by  the  same 
instrument  gives  to  C  other  property  belonging  to  him- 
self. The  equitable  doctrine  upon  these  facts,  briefly,  is: 
C  has  two  alternatives:  1.  He  may  elect  to  take  under  the 
instrument,  and  to  carry  out  all  its  provisions ;  he  will  then 
take  A 's  property,  which  was  given  to  him,  and  B  will  take 
C's  property.  2.  He  may  elect  against  the  instrument.  In 
that  case  he  will  not  wholly  forfeit  the  benefits  intended  to 
be  conferred  upon  him ;  he  must  surrender  only  so  much  of 
such  benefits  as  may  be  necessary  to  compensate  B  for  the 
disappointment  he  has  suffered  by  C's  election  to  take 
against  the  instrument. ^  «■  The  foundation  of  this  doctrine 
is  said  by  the  early  cases  to  be  the  intentio7i  of  the  donor, 
either  expressed  in  the  instrument  or  implied  by  its  terms ; 

§  461,  3  As  where  a  testator,  by  the  same  will,  has  purported  to  devise 
his  land  to  a  third  pei-son,  and  has  bequeathed  personal  property  to  his 
heir  at  law,  and  the  will  is  valid  as  one  of  personal  estate,  but  ineffectual 
as  one  of  real  estate. 

§  461,  4  Snell's  Equity,  178. 

§  462,  1  Gretton  v.  Haward,  1  Swanst.  409.  433,  and  the  note  of  Mr. 
Swanston,  in  which  the  prior  decisions  are  collected,  and  rules  deduced 
from  them  are  formulated. 

§  462,  (a)  This  paragraph  of  the  51  N.  J.  Eq.  597,  40  Am.  St.  Rep.  532, 
text  is  cited  in  Hatterslev  v.  Bissett,       29  Atl.  187. 


§  463  EQUITY   JURISPRUDENCE.  880 

and  the  court,  by  requiring  an  election  to  be  thus  made,  is 
said  to  be  carrying  into  effect  this  assumed  intention.^ 
Whether  this  be  the  correct  explanation  of  the  rule  will  be 
considered  in  subsequent  paragraphs.  As  the  doctrine  of 
election  is  one  of  the  most  distinctive  and  remarkable 
features  of  equity  jurisprudence,  I  purpose  in  my  further 
treatment  of  it  to  explain,  in  the  first  place,  its  general 
meaning,  scope,  and  effect;  and  in  the  second  place,  to  de- 
scribe its  particular  applications,  together  with  its  limita- 
tions and  exceptions  as  established  by  the  course  of  decision. 

§  463.  In  the  Roman  Law. — The  germ  of  the  doctrine  of 
election,  as  above  stated,  is  confessedly  to  be  found  in  the 
Roman  law.  The  substance  of  a  Roman  testament  con- 
sisted in  the  designation  of  some  person  who  was  thereby 
constituted  the  heir  or  universal  successor  to  the  testator, 
and  a  time  was  allowed  him  in  which  to  decide  whether  he 
would  accept  or  reject  the  inheritance.  If  he  accepted,  he 
not  only  acquired  a  title  to  all  the  property  and  assets  of 
the  deceased,  but  he  also  became  subject  to  all  the  debts 
and  liabilities  of  the  testator,  and  substantially  to  all  the 
legacies  and  bequests  to  particular  individuals  contained  in 
the  will.  Among  the  burdens  thus  assumed  by  the  heir  was 
that  of  procuring  for  a  legatee  or  giving  to  him  the  value 
of  any  particular  subject-matter  which  the  testator  had  be- 
queathed to  him,  knowing  that  it  belonged  to  a  third  person. 
If  a  testator,  besides  appointing  Titius  his  heir,  had  said, 
*'I  bequeath  to  Claudius  the  house  of  Sempronius,  situate 
at  Tusculum,"  Titius,  on  accepting  the  inheritance,  was 
bound  either  to  purchase  the  house  of  Sempronius,  and  con- 
vey it  to  Claudius,  or  if  that  was  impossible,  to  pay  Claudius 
the  appraised  value  of  the  house.  This  rule,  however,  only 
applied  where  the  testator  knew  that  the  thing  which  he 
bequeathed  was  the  property  of  another,  and  not  if  he 
erroneously  supposed  that  it  was  his  own.  In  that  case  the 
legacy  would  be  simply  void.     This  doctrine  is  stated  in 

§  462,  2  Dillon  v.  Parker,  1  Swanst.  359,  394,  note  of  Mr.  Swanston. 


881  CONCERNING    ELECTION.  §  464 

the  Institutes  as  follows:  ''A  testator  may  not  only  give 
as  a  legacy  his  own  property,  or  that  of  his  heir,  hut  also 
the  property  of  others.  The  heir  is  then  obliged  either  to 
purchase  and  deliver  it,  or  if  it  cannot  be  bought,  to  give 
its  value.  .  .  .  But  when  we  say  that  a  testator  may  give 
the  goods  of  another  as  a  legacy,  we  must  be  understood 
to  mean  that  this  can  only  be  done  if  the  deceased  knew  that 
what  he  bequeathed  belonged  to  another,  and  not  if  he  were 
ignorant  of  it ;  since,  if  he  had  known  it,  he  would  not,  per- 
haps, have  left  such  a  legacy."  ^  In  this  respect,  our  equity 
jurisprudence  differs  widely  from  the  Roman  law,  since  the 
equitable  doctrine  of  election  applies,  whether  the  donor  was 
or  was  not  aware  that  he  was  dealing  with  property  not 
his  own.* 

§  464.  Presumed  Intention  of  the  Donor.a — In  seeking 
the  origin  of  the  doctrine,  and  endeavoring  to  ascertain  its 
true  foundation,  I  will  quote  by  way  of  illustration  one  of 
the  earliest  cases  in  which  the  question  distinctly  arose  :^ 
*'A  was  seised  of  two  acres,  one  in  fee,  t'other  in  tail;  and 
having  two  sons,  he,  by  his  will,  devises  the  fee-simple  acre 

§  463,  1  Justinian's  Institutes,  lib.  ii.,  tit.  xx.,  §  4 :  "Non  solum  autem 
testatoris  vel  heredis  res,  sed  etiam  aliena  legari  potest,  ita  ut  beres  coga- 
tur  redimere  earn  et  prjestare;  vel  si  non  potest  redimere,  sestimationem 

ejus  dare Quod  autem  diximus  alienam  rem  posse  legari,  ita  in- 

telligendum  est,  si  def unctus  sciebat  alienam  rem  esse,  non  et  si  ignorabat ; 
forsitan  enim  si  seisset  alienam,  non  legasset." 

The  Frencb  code  entirely  refuses  to  adopt  tbe  doctrine  of  election,  and 
tbe  bequest  or  donation  of  another's  property  would  be  void.  Code  Civil, 
§  1021 :  "Lorsque  le  testateur  aura  legue  la  chose  d'autrui,  le  legs  sera 
nul,  soit  que  le  testateur  ait  connu,  ou  non,  qu'elle  ne  lui  appartenait  pas." 

§  464,  1  Anonymous,  Gilb.  Eq.  15. 

§483,  (a)  The  text  is  cited  to  this  §464,    (a)    This  paragraph   of  the 

effect  in  Barrier  v.  Kelly  (Miss.),  33  text  is  cited  in  Hattersley  v.  Bissett, 

South.  974.     This  paragraph  is  also  51   N.  J,   Eq.   597,   40   Am.   St.   Rep. 

cited   in   Holland   v.   Gouts,   42   Tex.  532,   29   Atl.   187.     Sections  464-471 

Civ.  App.  515,  98  S.  W.  233  (reversed  are  cited  in  Drake  t.  Wild  (Vt.),  3& 

on   appeal,   100   Tex.   232,   98   S.   W.  Atl.  248. 
236). 

1—56 


§  464  EQUITY    JURISPRUDENCE.  882 

to  his  eldest  son,  who  was  issue  in  tail;  and  he  devised 
the  tail  acre  to  hib  youngest  son,  and  dy'd,  the  eldest  son 
entered  upon  the  tail  acre;  whereupon  the  youngest  son 
brought  his  bill  in  this  court  against  his  brother,  that  he 
might  enjoy  the  tail  acre  devised  to  him,  or  else  have  an 
equivalent  out  of  the  fee  acre;  because  his  father  plainly 
designed  him  something.  Lord  Chancellor  Coivper:  This 
devise  being  designed  as  a  provision  for  the  youngest  son, 
the  devise  of  the  fee  acre  to  the  eldest  son  must  be  under- 
stood to  be  with  a  tacit  condition  that  he  shall  suffer  the 
younger  son  to  enjoy  quietly,  or  else  that  the  younger  son 
shall  have  an  equivalent  out  of  the  fee  acre,  and  decreed 
the  same  accordingly."^  The  rationale  of  the  doctrine,  as 
shown  by  this  and  other  decisions,  plainly  appears  to  be 
that  a  court  of  equity  implies  a  condition  where  none  is 
expressed  in  the  will,  and  annexes  it  to  the  donation.  As 
Lord  Chancellor  Cowper  says:  ''The  devise  of  the  fee  acre 
to  the  eldest  son  is  understood  to  be  with  a  tacit  condition 
that  he  shall  suffer  the  younger  son  to  enjoy  quietly."  It 
should  be  remarked  that  this  gives  no  real  explanation, — 
adds  nothing  to  the  mere  statement  of  the  doctrine  itself. 
When  we  say  that  equity  implies  a  condition  in  the  instru- 
ment annexed  to  the  donation,  we  are,  in  fact,  only  stating 
the  doctrine  of  election  in  other  words ;  the  very  obligation 
to  elect  consists  in  the  conditional  nature  of  the  devise. 
Judge  have  therefore  gone  a  step  further  back,  and  have 
said  that  the  condition  is  implied,  because  such  result — 
such  tacit  addition  to  the  instrument — must  be  regarded 
as  being  in  accordance  with  the  actual  intention  of  the 
testator  or  other  donor.  This,  then,  is  said  to  be  the  foun- 
dation of  the  doctrine, — the  actual  intention  of  the  donor 
assumed,  from  the  nature  of  the  gifts,  to  have  existed.  A 
disposition  calling  for  an  application  of  the  doctrine  of 
election  may  be  made  under  two  following  different  states 
of  circumstances :  Either  the  donor  may  know  that  the  prop- 

§464,   (b)   The  text  is  quoted  in  Battle  v.  Claiborne,  133  Tenn,  2S6,  180 
S.  W.  584. 


883  CONCERNING    ELECTION.  §  464 

erty  which  he  assumes  to  deal  with  is  not  his  own,  but 
belongs  to  another,  and  notwithstanding  such  knowledge  he 
may  assume  to  give  it  away;  or  he  may  give  it  away,  not 
knowing  that  it  belongs  to  another,  but  erroneously  and 
in  good  faith  supposing  that  it  is  his  own.  In  the  first 
of  these  two  cases,  the  presumption  of  an  intention  on  the 
part  of  the  donor  to  annex  a  condition  to  the  gift  calling 
for  an  election  by  the  beneficiary  plainly  agrees  with  the 
actual  fact ;  at  all  events,  it  violates  no  probabilities.  When 
a  testator  devises  an  estate  belonging  to  A  to  some  third 
person,  and  at  the  same  time  bestows  a  portion  of  his  own 
property  upon  A,  he  undoubtedly  must  rely  upon  the  bene- 
fits thus  conferred  upon  A  as  an  inducement  to  a  ratifica- 
tion by  A  of  the  whole  disposition.  To  give  A  the  prop- 
erty which  the  testator  was  able  to  dispose  of,  and  at  the 
same  time  to  allow  him  to  claim  his  own  estate,  which  had 
been  devised  to  the  third  person,  by  his  own  paramount 
title,  would  be  to  frustrate  the  evident  intention  of  the  tes- 
tator. In  the  second  case,  where  the  testator,  or  other 
donor,  erroneously  supposes  that  the  property  which  he 
undertakes  to  give  away  is  in  fact  his  own,  the  doctrine  of 
election  applies  with  the  same  force  and  to  the  same  extent 
as  in  the  former.^     Here  it  is  in  the  nature  of  things  simply 

§  464,  2  See  Cooper  v.  Cooper,  L.  R.  6  Ch.  15,  16,  20.  In  the  court  of 
first  instance,  Vice-Chancellor  Stuart  held  there  was  no  case  for  an  elec- 
tion. He  said  (p.  16,  in  note)  :  "In  order  to  raise  a  case  for  election, 
there  must  be  an  attempted  disposition  of  property  over  which  the  tes- 
tator has  no  disposing  power,  and  a  disposition  of  property  of  his  own 
on  such  a  footing  as  shows  that  he  considered  himself  to  have  power  to 
dispose  of  the  former  property."  The  vice-chancellor  thus  expresses  an 
opinion  that  the  doctrine  of  election  only  applies  in  the  second  case  men- 
tioned in  the  text,  namely,  when  the  donor  had  acted  under  an  erroneous 
supposition.  This  decision  was  reversed  by  the  court  of  appeals.  Lord 
Justice  James  thus  states  the  doctrine  (p.  20)  :  "The  vice-chancellor  ap- 
pears to  have  thought  that  there  was  some  distinction  between  an  invalid 
gift  of  property  which  the  testator  believed  to  be  his  own  and  an  invalid 
gift  of  property  which  the  testator  knew  not  to  be  his  own,  but  which  he 
believed  he  had  a  power  of  appointment  over,  which  he  had  not.  I  am 
unable  to  find  any  authority  or  any  principle  on  which  to  rest  this  dis- 


§  464  EQUITY    JURISPRUDENCE.  884 

impossible  that  the  donor  could  actually  have  had  the  inten- 
tion which  the  theory  imputes  to  him,  since  he  really  be- 
lieves himself  to  have  a  disposing  power  of  the  property, 
'or  to  be  dealing  with  property  which  is  his  own.*^  And  yet 
the  earlier  decisions,  at  least,  regarded  the  presumed  in- 
tention to  annex  a  condition  to  the  gift  as  the  true  founda- 
tion of  the  doctrine  in  this  case  as  much  as  in  the  other.^ 
The  course  of  reasoning  through  which  the  judicial  mind 
passed  in  reaching  these  conclusions  is  very  plain,  and.  as 

1  think,  very  natural.  In  an  early  case  of  the  first  kind, 
where  a  testator  had  designedly  assumed  to  devise  prop- 
erty over  which  he  knew  that  he  had  no  disposing  power, 
the  court  saw,  and  were  compelled  to  see,  an  actual  inten- 

tinction.  It  is  in  both  cases  in  substance  a  disposition,  or  an  attempted 
disposition,  by  will,  of  property  over  which  the  testator  has  no  disposing 
power."  See  Ingram  v.  Ingram,  cited  in  Kirkham  v.  Smith,  1  Ves.  Sr. 
258,  259 ;  Thellusson  v.  Woodford,  13  Ves.  209,  220 ;  Whistler  v.  Webster, 

2  Ves.  367;  Birmingham  v.  Kirwan,  2  Schoales  &  L.  444;  Grissell  v. 
Swinhoe,  L.  R.  7  Eq.  291. 

§  464,  3  The  note  of  Mr.  Swanston  to  the  case  of  Dillon  v.  Parker,  1 
Swanst.  359,  394,  401,  has  always  been  considered  as  an  accurate  state- 
ment of  the  doctrine  and  of  the  reasons  upon  which  it  is  based.  He 
reaches  this  conclusion,  as  applicable  under  all  circumstances :  "The  foun- 
dation of  the  equitable  doctrine  is  the  intention,  explicit  or  presumed,  of 
the  author  of  the  instrument  to  which  it  is  applied."  The  opinion  of 
Lord  Alvanley  in  Whistler  v.  Webster,  2  Ves.  367,  370,  has  always  been 
looked  upon  as  a  leading  one.  He  says :  "The  question  is  very  short, — 
whether  the  doctrine  laid  down  in  Noys  v.  Mordaunt,  2  Vern.  581,  Eq. 
Cas.  Abr.  273,  pi.  3,  Gilb.  Eq.  2,  and  Streatfield  v.  Streatfield,  Cas.  t. 
Talb.  176,  has  established  this  broad  principle,  viz.,  that  no  man  shall 
claim  any  benefit  under  a  will  without  conforming,  as  far  as  he  is  able, 
and  giving  effect  to  everything  1;ontained  in  it,  whereby  any  disposition 
is  made  showing  an  intention  that  such  thing  shall  take  jolace,  without 
reference  to  the  circumstance  whether  the  testator  had  any  knowledge  of 
the  extent  of  his  power  or  not.  Nothing  can  be  more  dangerous  than  to 
speculate  upon  what  he  would  have  done  if  he  had  known  one  thing  or 
another.  It  is  enough  for  me  to  say  he  had  such  an  intention;  and  I  will 
not  speculate  upon  what  he  would  have  intended  in  different  eases  jiut." 

§  464,    (c)   This   paragraph   of   the       case  falling  within  the  second  cats- 
text  is  quoted  extensively  in  Barrier       gory  stated  by  the  author, 
v.    Kelly    (Miss.),   33    South.   974,    a 


885  CONCERNING    ELECTION.  §  465 

tion  of  the  testator  to  annex  the  tacit  condition  to  his  gift, 
and  this  intention  was  made  the  basis  of  tlie  doctrine  of 
election  as  applied  under  such  circumstances.  Wlien  an- 
other case  arose  of  the  second  kind,  where  the  testator  had 
acted  under  an  erroneous  supposition,  the  court,  having  con- 
cluded that  the  doctrine  of  election  must  also  be  applied 
here,  naturally,  and  as  a  part  of  their  verbal  judicial  logic, 
gave  to  it  the  same  foundation  in  an  assumed  intention  of 
the  testator,  although,  under  the  circumstances,  no  such 
intention  actually  existed  or  could  exist.  The  doctrine, 
therefore,  although  originally  springing  from  an  actual  in- 
tention, and  although  professing  always  to  be  based  upon 
the  intention,  is  really  independent  of  intention;  while  the 
language  may  still  be  repeated,  that  the  court  presumes  an 
intention,  no  evidence  would  ever  be  admitted  for  the  pur- 
pose of  showing  its  existence  or  non-existence.  In  short, 
the  doctrine  of  election  has  become  a  positive  rule  of  the  law 
governing  the  devolution  and  transmission  of  property  by 
instruments  of  donation,  and  is  invoked  wholly  irrespective 
of  the  intention  of  the  donor,  although  in  the  vast  majority 
of  cases  it  undoubtedly  does  carry  into  effect  the  donor's 
real  purpose  and  design. 

§  465.  True  Foundation. — What,  then,  is  the  real  founda- 
tion? It  is  possible  to  answer  this  question.  There  is,  in 
my  opinion,  a  true  rationale  which  at  once  relieves  the  doc- 
trine of  election  from  all  the  semblance  of  technicality  and 
untruth  attaching  to  it  when  it  is  referred  to  a  presumed 
intention,  which  prevents  it  from  being  regarded  as  a 
stretch  of  arbitrary  power  on  the  part  of  the  court,  and 
which  shows  it  to  be  in  complete  harmony  with  the  highest 
requirements  of  righteousness,  equity,  and  good  faith.  I 
venture  the  assertion  that  the  only  true  basis  upon  which 
the  doctrine  can  be  rested  is  that  maintained  in  the  pre- 
ceding chapter,  namely,  the  grand  principle  that  he  who 
seeks  equity  must  do  equity.  This  principle  has  ordinarily 
been  regarded  simply  as  furnishing  a  guide  to  the  courts 
in  their  apportionment  of  equitable  relief  among  the  par- 


§  466  EQUITY    JURISPRUDENCE.  886 

ties  in  a  great  variety  of  cases;  but,  as  I  have  shown,  it  is 
also  the  undeniable  source  of  certain  distinctively  equitable 
doctrines.  There  is  no  doctrine  more  unmistakably  and 
completely  derived  from  this  grand  principle  than  that  of 
election.  The  whole  theory  and  process  of  election  is  a 
practical  application  of  the  maxim,  He  who  seeks  equity 
must  do  equity.  A  party  asserts  his  claim  to  certain  prop- 
erty; in  order  that  he  may  obtain  any  relief,  he  must  ac- 
knowledge and  make  provision  for  the  equitable  rights  of 
other  parties  derived  from  the  same  instrument,  and  to 
that  end  must  make  his  election,  so  that  in  either  choice 
those  rights  shall  be  preserved.  The  very  election  which 
he  is  obliged  to  make  consists  in  the  ''doing  equity"  to 
others  which  the  principle  demands.  In  this  principle.  He 
who  seeks  equity  must  do  equity,  is  found  a  sufficient  ex- 
planation and  a  solid  foundation  for  the  doctrine,  which  is 
thus  seen  to  harmonize,  in  all  its  phases  and  applications, 
with  the  requirements  of  justice  and  good  faith. ^  * 

§  466.  Meaning,  Scope,  and  Effects — Election  in  Con- 
formity With  the  Instrument. — Having  thus  ascertained  the 
origin  and  foundation  of  the  doctrine,  I  proceed  to  describe 
its  true  meaning,  scope,  and  effect.  This  discussion  will 
consist  mainly  in  determining  with  accuracy  the  nature  of 
the  tacit  condition  imposed  by  the  donor  upon  the  gift  which 

§  465,  1  Some  writers  and  some  judges,  in  treating  "election"  as  based 
wholly  upon  the  notion  of  a  presumed  intention,  have  described  the  doc- 
trine, in  certain  of  its  applications,  as  arbitrary  and  technical,  and  as  an 
unwarrantable  exercise  of  power  by  the  court  of  chancery.  In  abandon- 
ing the  theory  of  an  "intention"  as  more  formal  than  real,  and  in  placing 
election  upon  a  basis  of  principle, — He  who  seeks  equity  must  do  equity, — 
I  have,  I  would  venture  to  suggest,  relieved  it  from  these  criticisms,  and 
have  shown  that  the  early  chancellors,  in  its  invention  and  development, 
acted  wisely,  and  in  full  accordance  with  the  conceptions  of  a  high  mor- 
ality, upon  which  the  whole  system  of  equity  jurisprudence  is  constructed. 

§  465,    (a)    The    text    is    cited    in  thor's  conclusions  are  also  approved 

Penn  v.   Guggenlieimer,   76  Va.   839,  in  Barrier  v.  Kelly  (Miss.),  33  South. 

846;  also,  in  Battle  v.  Claiborne,  133  974. 
Tenn.  286,   180   S.  W.  584.     The  au- 


887  CONCERNING   ELECTION.  §  467 

he  has  made  to  the  beneficiary  whose  property  he  also  as- 
sumed to  dispose  of  to  another  person.  What  is  this  con- 
dition? Lord  Chancellor  Cowper,  in  the  case  heretofore 
quoted,  stated  it  very  briefly,  that  ''the  eldest  son  shall 
sutfer  the  youngest  son  to  enjoy  quietly,  or  else  have  an 
equivalent  out  of  the  fee  acre."  The  tacit  condition  is  thus 
always  double  and  alternative  in  its  form.  Its  effect  is, 
that  the  donee,  whose  own  property  has  also  been  given  to 
another  person,  may  elect  either  to  take  under  and  in  con- 
formity with  the  will  or  other  instrument  of  donation,  or 
else  to  take  against  it.  If  he  elects  the  first  alternative, 
and  takes  under  the  will,  then  the  condition  simply  requires 
him  to  carry  out  all  the  dispositions  of  that  instrument.  In 
other  words,  he  receives  the  testator's  property  directly 
bestowed  upon  him  as  devisee,  and  at  the  same  time  con- 
veys his  own  estate  to  the  other  person  designated  by  the 
will  as  the  recipient  of  it.  There  is  no  difficulty  in  this  case, 
no  doubt  or  question  concerning  this  alternative  branch  of 
the  tacit  condition ;  the  will  or  other  instrument  of  donation 
is  carried  into  effect  in  exact  conformity  with  its  disposi- 
tions.* 

§  467.  Election  in  Opposition  Thereto.— The  only  diffi- 
culty arises  when  the  party  upon  whom  the  condition  rests 
elects  to  take  against  the  will.  In  such  case  he  retains  his 
own  estate,  which  the  will  had  assumed  to  bestow  upon  the 
other  person,  but  of  course  cannot  claim,  to  its  full  extent 
at  least,  the  testator's  property  which  the  will  had  given  to 
himself.  "What  is,  then,  the  import  of  the  tacit  condition? 
It  does  not  say  he  must  take  in  conformity  to  the  will,  or 
else  forfeit  the  testator's  property  given  by  it  to  him.  If 
that  were  the  effect  of  the  condition,  the  forfeited  prop- 
erty would  either  descend  to  the  testator's  heir,  or  be  em- 
braced in  the  residuary  clause  of  the  will,  and  the  third  per- 

§466,  (a)  The  text  is  cited  in  Penn  Atl.   512;    De   Vitto   v.   Harvey,   262 

V.    Guggenheimer,    76   Va.    839,    846.  111.  66,  104  N.  E.  168  (will  gives  life 

See,  also,  Job  Haines  Home  for  Aged  estate     determinable     upon     remar- 

People   V.    Keene    (N.    J.    Eq.),    101  riage). 


§  467  EQUITY    JURISPRUDENCE.  888 

son  intended  by  the  testator  to  be  benefited  would  receive 
nothing.  The  condition  therefore  says  that  he  shall  con- 
firm the  will,  or  else,  out  of  the  testator's  property  given 
to  him  by  the  will,  he  shall  make  compensation  to  the  third 
person,  who  is  disappointed  by  his  choice.^  The  tacit  con- 
dition imposing  the  obligation  of  an  election  upon  one 
party  contrives  a  means  of  satisfying  the  substantial  rights 
of  both  parties,  by  compelling  full  equity  to  be  done.  This 
import  of  the  condition  imposed  upon  the  donee  who  is  to 
make  the  election  is  well  stated  in  the  following  conclusions 
reached  by  Mr.  Swanston,  after  a  review  of  the  authorities, 
in  his  well-known  note  to  Gretton  v.  Haward,i  yiz. : — 

§  467,  1  Gretton  v.  Haward,  1  Swanst.  409,  433,  441.  The  doctrine  is 
ably  stated  in  the  following  opinion  of  Sir  Thomas  Plumer,  M.  R.,  in 
this  case,  which  has  always  been  regarded  as  a  leading  one  (p.  423)  : 
'Tew  cases  are  to  be  found  on  the  subject,  but  it  must  be  acknowledged 
that  the  language  of  the  great  judges  by  whom  it  has  been  discussed  pro- 
ceeds to  the  extent  of  ascribing  to  the  court  an  equity  to  lay  hold  on  the 
estate  thus  taken  from  the  devisee  by  the  principle  of  election,  and  dis- 
pose of  it  in  favor  of  those  whom  he  has  disappointed;  not  merely  tak- 
ing it  from  one,  but,  such  is  the  uniform  doctrine,  bestowing  it  on  the 
other, — a  doctrine  not  confined  to  instances  in  which  the  heir  is  put  to 
election,  and  which  may  be  said  to  bring  him  within  the  operation  of  the 
general  principle,  but  prevailing  as  a  universal  rule  of  equity,  by  which 
the  court  interferes  to  supply  the  defect  arising  from  the  circumstance 
of  a  double  devise,  and  the  election  of  the  party  to  renounce  the  estate 
eifectually  devised;  and  instead  of  pennitting  that  estate  to  fall  into  the 
channel  of  descent,  or  to  devolve  in  any  other  way,  lays  hold  of  it,  to 
use  the  expression  of  the  authorities,  for  the  purpose  of  making  satisfac- 
tion to  the  disappointed  devisee, — a  veiy  singular  office;  for  in  ordinary 
cases,  where  a  legatee  or  devisee  is  disappointed,  the  court  cannot  give 
relief,  but  here  it  interposes  to  assist  the  party  whose  claim  is  frustrated 
by  election.  Such  is  the  language  of  Lord  Chief  Justice  De  Grey,  cited 
with  approbation  by  Lord  Loughborough :  'The  equity  of  this  court  is  to 
sequester  the  devised  estate  quousque  till  satisfaction  is  made  to  the  dis- 
appointed devisee.'  I  conceive  it  to  be  the  universal  doctrine  that  the 
court  possesses  power  to  sequester  the  estate  till  satisfaction  has  been 
made,  not  permitting  it  to  devolve  in  the  customary  course.     Out  of  that 

§467,  (a)  The  text  is  cited  to  tbis       N.   E.   .537;    Cooley   v.   Houston,   229 
effect  in  Holdren  v.  Holdren,  78  Ohio       Pa.  495,  78  Atl.  1129. 
St.  276,  18  L.  R.  A.   (N.  S.)   272,  85 


889  CONCERNING   ELECTION.  §  468 

1.  That  in  the  event  of  an  election  to  take  against  the 
instrument,  courts  of  equity  assume  jurisdiction  to  seques- 
ter the  benefits  intended  for  the  refractory  donee,  in  order 
to  secure  compensation  to  those  wliom  his  election  dis- 
appoints. 

2.  That  the  surplus  after  compensation  does  not  devolve, 
as  undisposed  of,  but  is  restored  to  the  donee,  the  purpose 
being  satisfied  for  which  alone  the  court  controlled  his  legal 
right. 

§  468.  Compensation  the  Result. — In  this  general  exam- 
ination of  the  doctrine  there  remains  one  more  question  to 
be  considered.  In  any  case  for  an  election,  where  the  party 
upon  whom  the  necessity  devolves  elects  to  take  in  opposi- 
tion to  the  instrument  of  donation,  and  therefore  retains 
his  own  estate  which  had  been  bestowed  upon  the  third  per- 
son, does  he  thereby  lose  all  claim  upon  or  benefit  of  the 
donor's  property  given  to  himself?  or  does  he  only  lose 
such  part  of  it  or  so  much  of  its  value  as  may  be  needed 
to  indemnify  the  disappointed  third  person?  In  adjusting 
the  equities  between  himself  and  the  third  person,  must 
he  necessarily  surrender  to  that  person  the  entire  gift  made 
to  himself?  or  must  he  simply  make  adequate  compensation? 
Few,  if  any,  of  the  cases  have  required  a  decision  of  this 
question  ;i  and  what  has  been  said  concerning  it  has  chiefly 

sequestered  estate  so  much  is  taken  as  is  requisite  to  indemnify  the  dis- 
appointed devisee;  if  insufficient,  it  is  left  in  his  hands.  In  the  case  to 
which  I  have  referred,  Lord  Loughborough  uses  the  expression  that  the 
court  'lays  hold  of  what  is  devised,  and  makes  compensation  out  of  that 
to  the  disappointed  party.'  ...  It  would  be  too  much  now  to  dispute 
this  principle,  established  more  than  a  century,  merely  on  the  ground  of 
difficulty  in  reducing  it  to  practice,  and  disposing  of  the  estate  taken 
from  the  heir  at  law  without  any  will  to  guide  it;  for  to  this  purpose 
there  is  no  will;  the  will  destined  to  the  devisee,  not  this  estate,  but  an- 
other; he  takes  by  the  act  of  the  court  (an  act  truly  described  as  a  strong 
operation) ;  not  by  descent,  not  by  devise,  but  by  decree, — a  creature  of 
equity." 

§  468,  1  The  reason  is  very  plain.  A  person  compelled  to  elect  will 
generally  be  influenced,  in  making  the  election,  solely  by  his  own  pecuni- 


§  468  EQUITY   JURISPRUDENCE.  890 

been  by  way  of  argument  and  of  judicial  dictum.  The  rule 
may  be  regarded,  however,  as  settled  by  the  weight  of 
judicial  opinion  very  strongly  in  favor  of  convpensating  the 
donee  who  is  disappointed  by  an  election  against  the  instru- 
ment. If  the  gift  which  he  takes  by  way  of  substitution  is 
not  sufficient  in  value  to  indemnify  him  for  that  which  he 
has  lost,  he  of  course  retains  the  whole  of  it.^  ^ 

ary  interests.  If  the  property  bequeathed  to  himself  by  a  will  is  more 
valuable  than  his  own,  he  naturally  elects  to  take  under  the  will,  and  lets 
his  own  estate  go  to  the  third  person.  If  the  proi^erty  bequeathed  to 
himself  be  less  valuable  than  his  own,  he  elects  to  take  against  the  will," 
and  retains  his  own.  It  is  then  of  no  consequence  whether  the  principle 
adopted  with  reference  to  the  bequest  made  to  himself  be  forfeiture  or 
compensation,  since  the  whole  subject-matter  is  insufficient  to  indemnify 
the  disappointed  legatee.  In  other  words,  the  third  person  takes  all  the 
bequest  in  question,  and  must  be  satisfied  with  it,  for  he  has  no  right  to 
anything  more.  The  question  would  arise  in  such  a  ease  as  the  follow- 
ing: A  testator  bequeaths  fifty  thousand  dollars  to  A,  and  devises  to  B 
an  old  family  estate  of  which  A  is  owner  in  fee,  and  which  is  worth 
only  twenty  thousand  dollars.  A,  from  attachment  to  the  family  estate, 
elects  to  keep  it,  and  thus  to  take  in  opposition  to  the  will.  Is  B  then 
entitled  to  the  whole  fifty  thousand  dollars'?  or  only  to  twenty  thousand 
dollars  of  it, — -the  value  of  the  estate  which  he  loses  by  the  election,— 
so  that  the  balance  of  thirty  thousand  dollars  would  still  belong  to  A? 
The  latter  alternative  is  the  view  taken  by  the  weight  of  authority.* 

§  468,  2  Gretton  v.  Haward,  1  Swanst.  409,  423,  433,  441.  See  opinion 
of  Sir  T.  Plumer,  M.  R.,  and  note  of  Mr.  Swanston,  quoted  ante,  §  467 ; 
Rogers  v.  Jones,  3  Ch.  Div.  688;  Pickersgill  v.  Rodger,  5  Ch.  Div.  163, 
173.  In  Rogers  v.  Jones  3  Ch.  Div.  688,  under  the  peculiar  circum- 
stances of  the  case,  the  question  was  actually  decided,  and  the  opinion 
was  not  a  dictum.     Jessel,  M.  R.,  said  (p.  689)  :  "The  doctrine  of  elee- 

§468,    (a)    This    note   ia    cited   in  Hamilton,    [1892]    1   Ch.    396;    In   re 

Barrier   v.   Kelly   (Miss.),   33   South.  Booth  (Booth  v.  Eobinson),  [1906]   2 

974.  Ch.   321;    Bebout   v.    Quick,    81    Ohio 

§468,    (b)    This   paragraph   of   the  St.    196,    90    N.    E.    162;    Colvert    v. 

text  is  cited  and  followed  in  Brown  Wood,  93  Tcnn.  454,   25   S.   W.   963. 

V.   Brown,   42   Minn.   270,   44   N.  W.  The   date  for  fixing  the   amount   of 

250;  Hattersley  v.  Bissett,  51  N.  J.  compensation    payable     to     legatees 

E'q.  597,  40  Am.  St.  Rep,  532,  29  Atl.  who  are  disappointed  by  the  election 

187;    Barrier    v.    Kelly    (Miss.).    33  is  the  death  of  the  testator,  not  the 

South.  974;  and  in  Cotton  v.  Fletcher,  time  when  the  election  is  made:   In 

77  N.  H.  216,  Ann.  Cas.  1915A,  1225,  re   Hancock    (Hancock  v.   Pawson), 

90  Atl.  .jIO.     See,  also,  Hamilton  v.  [1905]  1  Ch.  16. 


891  CONCERNING    ELECTION.  §  469 

§  469.  A  Fund  from  Which  Compensation  can  be  Made, 
Essential. — As  the  doctrine  of  election  thus  depends  upon 
the  principle  of  compensation,  it  follows  as  a  necessary  con- 
sequence that  it  will  not  be  applicable  in  any  case  unless 
there  is  a  fund  given  to  the  donee  who  is  compelled  to  elect, 
from  which  a  compensation  can  be  made  to  the  disappointed 

tion  is  this:  that  if  a  person  whose  property  a  testator  affects  to  give 
away  takes  other  benefits  under  the  same  will,  and  at  the  same  time  elects 
to  keep  his  own  property,  he  must  make  compensation  to  the  person 
affected  by  his  election  to  an  extent  not  exceeding  the  benefits  he  receives." 
In  Pickersgill  v.  Rodger,  5  Ch.  Div.  163,  173,  Jessel,  M.  R.,  speaking  of 
a  son  of  a  testatrix  to  whom  she  had  devised  property,  says  (p.  173) : 
"Consequently,  as  between  his  (the  son's)  estate  and  her  disappointed 
legatees,  her  disappointed  legatees  are  entitled  to  put  his  estate  to  an  elec- 
tion; that  is,  any  disappointed  legatee  is  entitled  to  say,  'You  shall  not 
have  the  benefit  given  to  your  estate  by  the  will,  unless  I  have  made  up  to 
me  an  equivalent  benefit  to  that  which  the  testatrix  intended  me  to  take.' 
Sometimes  this  is  called  the  doctrine  of  compensation,  which  is  the  mean- 
ing of  the  doctrine  of  election  as  it  now  stands.  The  disappointed  legatee 
may  say  to  the  devisee,  'You  are  not  allowed  by  a  court  of  equity  to  take 
away  out  of  the  testatrix's  estate  that  which  you  would  otherwise  be  en- 
titled to,  until  you  have  made  good  to  me  the  benefit  she  intended  for  me.' 
That  means  that  no  one  can  take  the  property  which  is  claimed  under  the 
will  without  making  good  the  amount;  or  in  other  words,  as  between  the 
devisees  and  legatees  claiming  under  the  will,  the  disappointed  legatees 
are  entitled  to  sequester  or  to  keep  back  from  the  other  devisees  or  lega- 
tees the  property  so  devised  and  bequeathed,  until  compensation  is  made. 
Thence  arises  the  doctrine  of  an  equitable  charge  or  right  to  realize  out 
of  that  property  the  sum  required  to  make  the  compensation.  If  you 
follow  out  that  doctrine,  you  will  see  that  the  person  taking  the  prop- 
erty so  devised  or  bequeathed  takes  it  subject  to  an  obligation  to  make 
good  to  the  disappointed  legatee  the  sum  he  is  disappointed  of.  The 
very  instrument  which  gives  him  the  benefit  gives  him  the  benefit  burdened 
with  the  obligation,  and  the  old  maxim,  Qui  sentit  commodum  sentire  debet 
et  onus,  applies  with  the  greatest  force  to  such  a  case  as  this."  The 
doctrine  is  here  explained  by  the  able  master  of  rolls  with  his  usual  clear- 
ness and  precision.  The  concluding  sentences  of  the  passage  fully  sus- 
tain the  view  maintained  by  me,  that  the  whole  doctrine  is  derived  from 
the  principle,  He  who  seeks  equity  must  do  equity.  In  Howells  v. 
Jenkins,  1  De  Gex,  J.  &  S.  617,  619,  Turner,  K  J.,  stated  this  doctrine: 
"The  true  principle  appears  to  me  to  be,  that  where  a  person  elects  to 
take  against  a  will,  the  persons  who  are  disappointed  by  that  eleetioii  are 


§  469  EQUITY    JURISPRUDENCE.  892 

parties,  or  which  perhaps  can  be  transferred  as  a  whole 
to  such  parties.  Thus  in  a  case  where,  under  a  power  to 
appoint  to  children,  the  father  made  an  appointment  im- 
properly, it  was  held  by  Lord  Loughborough  that  any  child, 
entitled  in  default  of  an  appointment,  might  set  it  aside, 
although  a  specific  share  had  been  appointed  to  him;  in 
other  words,  that  no  election  was  necessary.  The  lord  chan- 
cellor said:  "The  doctrine  of  election  never  can  be  ap- 

entitled  to  compensation,  out  of  the  benefits  given  to  him  by  the  will,  in 
proportion  to  the  value  of  the  interests  of  which  they  are  disappointed." 
See,  also,  the  following  cases,  which,  either  by  judicial  dicta  or  by  deci- 
sion, sustain  the  rule  as  to  compensation:  Streatfield  v.  Streatfield,  Cas. 
t.  Talb.  176;  Webster  v.  Metford,  2  Eq.  Cas.  Abr.  363;  Bor  v.  Bor,  3 
Brown  Pari.  C,  Tomlins's  ed.,  167;  Ardesoife  v.  Bennett,  1  Dick.  463; 
Lewis  V.  King,  2  Brown  Ch.  600;  Freke  v.  Barrington,  3  Brown  Ch.  274, 
284 ;  Whistler  v.  Webster,  2  Ves.  367 ;  Ward  v.  Baugh,  4  Ves.  623 ;  Lady 
Caven  v.  Pulteney,  2  Ves.  544,  560;  Blake  v.  Bunbury,  1  Ves.  514,  523; 
Welby  V.  Welby,  2  Ves.  &  B.  190,  191 ;  Dashwood  v.  Peyton,  18  Ves.  27, 
49;  Tibbits  v.  Tibbits,  Jacob,  317;  Lord  Rancliffe  v.  Parkyns,  6  Dow. 
149, 179 ;  Ker  v.  Wauchope,  1  Bligh,  1,  25 ;  Padbury  v.  Clark,  2  Maen.  &  G. 
298;  Greenwood  v.  Penny,  12  Beav.  403;  Grissell  v.  Swinhoe,  L.  R. 
7  Eq.  291 ;  Spread  v.  Morgan,  11  H.  L.  Cas.  588 ;  Cauffman  v.  Cauffman, 
17  Serg.  &  R.  16,  24,  25 ;  Philadelphia  v.  Davis,  1  Whart.  490,  502 ;  Stump 
V.  Findlay,  2  Rawle,  168,  174,  19  Am.  Dec.  632;  Lewis  v.  LeAvis,  13  Pa. 
St.  79,  82,  53  Am.  Dec.  443;  Van  Dyke's  Appeal,  60  Pa.  St.  4S1,  490; 
Sandoe's  Appeal,  65  Pa.  St.  314;  Key  v.  Griffin,  1  Rich.  Eq.  67;  Man-iott 
V.  Sam  Badger,  5  Md.  306 ;  Maskell  v.  Goodall,  2  Disn.  282 ;  Roe  v.  Roe, 
21  N.  J.  Eq.  253;  Estate  of  Delaney,  49  Cal.  77;  Tienian  v.  Roland,  15 
Pa.  St.  430,  451;  Wilbanks  v.  Wilbanks,  18  111.  17.«  Lapse  of  time, 
and  the  interests  of  third  persons  who  have  purchased,  may  render  an 
election  absolute,  and  prevent  a  payment  of  compensation,  instead  of  the 
property  itself.     See  Fulton  v.  Moore,  25  Pa.  St.  468,  476. 

The  following  are  the  most  important  cases  and  text-writers  containing 
dicta  in  favor  of  the  rule  that,  by  an  election  against  a  will,  the  donee 

§468,     (c)     See,    also,    Estate    of  purpose  of  confirming  the  will,  either 

Vance,  141  Pa.   St.  201,  33  Am.  St.  because  such  interest  is  not  assign- 

Eep.   267,   12  L.  R.  A.   227,   21   Atl.  able  or  because  the  assignment  of  it 

643.     The  doctrine   of   compensation  would  involve  a  breach  of  trust,  the 

does  not  apply  to  the  case  of  a  per-  court   will   not   award    compensation 

son  electing  to  take  under  the  will;  to   the    disappointed   legatee:    In   re 

thus,  where  the  person  so  electing  Lord  Chesham,  L.  R.  31  Ch.  Div.  466. 
cannot   assign    his   interest,    for   the 


893  CONCERNING   ELECTION.  §  47C 

plied  but  where,  if  an  election  is  made  contrary  to  the  will, 
the  interest  that  would  pass  by  the  will  can  be  laid  hold  of 
to  compensate  for  what  is  taken  away ;  therefore,  in  all  cases 
there  must  be  some  free,  disposable  property  given  to  the 
l")erson,  which  can  be  made  a  compensation  for  what  the  tes- 
tator takes  away. ' '  ^  This  is  not,  however,  any  new  and 
additional  requisite ;  it  is  merely  a  statement,  in  a  somewhat 
different  form,  of  the  fundamental  doctrine,  that,  in  order 
to  create  the  necessity  for  an  election,  the  donor  must  give 
to  B  some  property  which  actually  belongs  to  A,  and  must 
at  the  same  time  give  to  A  some  property  of  his  own.^ 

§470.  Doctrine  Applies  Both  to  Wills  and  Deeds.— It 
may  be  added  that  the  doctrine  of  election,  as  generally  de- 
scribed in  the  foregoing  paragraphs,  applies  to  all  instru- 
ments of  donation, — to  deeds,  settlements,  and  the  like,  as 

loses  or  forfeits  his  right  to  all  the  property  of  the  testator  given  to  him : 
Cowper  V.  Scott,  3  P.  Wms.  124;  Cookes  v.  Hellier,  1  Ves.  235;  Morris  v. 
Burroughs,  1  Atk.  404;  Pugh  v.  Smith,  2  Atk.  43;  Wilson  v.  Mount,  3 
Ves.  194;  Wilson  v.  Townsend,  2  Ves.  697;  Broome  v.  Monck,  10  Ves. 
609;  Thellusson  v.  Woodford,  13  Ves."  220;  Villareal  v.  Lord  Galway,  1 
Brown  Ch.  292,  note ;  Green  v.  Green,  2  Mer.  86 ;  also  note  by  Mr.  Jacob, 
in  his  edition  of  Roper  on  Husband  and  Wife,  vol.  1 ;  and  Lord  St.  Leon- 
ards, in  2  Sugden  on  Powers,  7th  ed.,  145.*  Many  of  these  cases  are  no 
doubt  to  be  explained  by  the  fact  that  ordinarily  when  a  donee  elects  to 
take  against  the  will,  and  thus  to  retain  his  own  property,  the  gift  to 
himself  made  by  the  testator  is  not  of  sufficient  value  to  indemnify  the 
disappointed  parties,  and  of  course  they  then  take  it  all,  and  there  is  no 
possible  room  for  any  compensation. 

§  469,  1  Bristow  v.  Warde,  2  Ves.  336.  See,  also,  In  re  Fowler's  Trusts, 
27  Beav.  362;  Box  v.  Barrett,  L.  R.  3  Eq.  244;  Banks  v.  Banks,  17  Beav. 
352 ;  Blacket  v.  Lamb,  14  Beav.  482 ;  Langslow  v.  Langslow,  21  Beav.  552. 

§  468,  (d)  See,  also,  Ashelford  v.  land  which  she  already  owned  in  her 
Chapman,  81  Kan.  312,  105  Pac.  534,  own  right,  and  the  rest  of  his  gift 
and  cases  cited,  as  to  election  by  to  her  was  no  more  than  she  was  en- 
widow  under  the  statutes:  §  494,  titled  to  as  dower,  inasmuch  as  there 
jxist.  was  no  fund  from  which  compensa- 

§  469,   (a)   The  text  is  quoted  and  tion  could  be  made,  a  case  was  not 

illustrated    in    Hunter    v.    Mills,    29  presented  for  election:   Bell  v.  Nye, 

S.  C.  72,  6  S.  E.  907.     Where  testator  255  111.  283,  42  L.  R.  A.  (N.  S.)  1127, 

devised  to  his  widow  a  life   estate,  and  note,  99  N.  E.  610. 
with   remainder   to   the    children,   in 


§§471,472  EQUITY   JUEISPEUDENCE.  894 

well  as  to  wills, — although  the  cases  involving  it  have  most 
frequently  arisen  under  wills. ^  ^  It  is  also  applicable  to 
interests  which  are  remote,  contingent,  partial,  or  of  small 
Value,  as  well  as  to  those  which  are  immediate,  certain, 
complete,  and  of  great  value. ^ 

§  471.     Applications — Cases  for  an  Election  Classified. — 

Plaving  thus,  according  to  the  arrangement  announced  in 
a  former  paragraph,  explained  the  origin,  general  scope, 
meaning,  and  effect  of  the  doctrine,  I  shall  now  proceed  to 
consider  it  with  respect  to  its  practical  applications,  its 
limitations,  and  exceptions.  In  other  words,  I  shall  de- 
scribe the  particular  cases  in  which  the  necessity  for  an 
election  does  or  does  not  arise,  and  the  rules  which  deter- 
mine and  regulate  them.  In  pursuing  this  branch  of  the 
subject,  I  shall  state  first  in  order  those  rules  which  are 
universal  in  their  application,  and  in  determining  the  neces- 
sity for  an  election  or  not  in  all  instances,  and  shall  then 
enumerate  and  classify  the  cases  which  have  been  settled 
by  the  courts  in  pursuance  of  these  rules. 

§  472.  Fundamental  Rule. — The  first  and  fundamental 
rule,  of  which  all  the  others  are  little  more  than  corollaries, 
is:  In  order  to  create  the  necessity  for  an  election,  there 
must  appear  upon  the  face  of  the  will  itself,  or  of  the  other 

§  470,  1  Llewellyn  v.  Mackworth,  Bam.  Ch.  445 ;  Bigland  v.  Huddles- 
ton,  3  Brown  Ch.  286,  note;  Moore  v.  Butler,  2  Schoales  &  L.  266;  Bir- 
mingham V.  Kirwan,  2  Schoales  &  L.  450;  Green  v.  Green,  2  Mar.  86; 
Bacon  v.  Crosby,  4  De  Gex  &  S.  261;  Cumming  v.  Forrester,  2  Jacob 
&  W.  345;  Anderson  v.  Abbott,  23  Beav.  457;  Mosley  v.  Ward,  29  Beav. 
407.  The  cases  of  election  so  frequently  arise  from  wills  that  the  general 
rules  concerning  it  have  sometimes  been  laid  down,  especially  by  Ameri- 
can courts,  in  language  which  appears  to  confine  it  to  those  instruments. 

§  470,  2  Webb  v.  Earl  of  Shaf tsbury,  7  Ves.  480 ;  Greaves  v.  Forman, 
cited  3  Ves.  67;  Highway  v.  Banner,  1  Brown  Ch.  584;  Wilson  v.  Town- 
shend,  2  Ves.  697;  but  see  Bor  v.  Bor,  3  Brown  Pari.  C,  Tomlins's  ed., 
178,  note,  per  Lord  Hardwicke. 

§  470,  (a)  The  text  is  cited  to  this       See,  also,  Barrier  t.  Kelly   (Miss.), 
effect   in   Packard    v.    De    Miranda       33  South.  974. 
(Tex.    Civ.    App.),    123    S.    W.    710. 


895  CONCEENING   ELECTION".  §  472 

instrument  of  donation,  a  clear,  unmistakable  intention,  on 
the  part  of  the  testator  or  other  donor,  to  dispose  of  prop- 
erty which  is  in  fact  not  his  own.  This  intention  to  dis- 
pose of  property  which  in  fact  belongs  to  another,  and  is 
not  within  the  donor's  power  of  disposition,  must  appear 
from  language  of  the  instrument  which  is  unequivocal, 
which  leaves  no  doubt  as  to  the  donor's  design;  the  neces- 
sity of  an  election  can  never  exist  from  an  uncertain  or 
dubious  interpretation  of  the  clause  of  donation.^  It  is  the 
settled  rule  that  no  case  for  an  election  arises  unless  the  gift 
to  one  beneficiary  is  irreconcilable  with  an  estate,  interest, 
or  right  which  another  donee  is  called  upon  to  relinquish ; 
if  both  gifts  can,  upon  any  interpretation  of  which  the 
language  is  reasonably  susceptible,  stand  together,  then  an 
election  is  unnecessary.^  The  instrument  may  declare  in 
express  terms  that  the  gift  to  A  must  be  accepted  by  him  in 
lieu  of  his  own  interest,  which  is  thereby  transferred  to  B, 
and  then  no  possible  doubt  could  exist.  But  this  direct 
mode  of  exhibiting  the  donor's  purpose  is  not  indispensable. 
It  is  sufficient  if  the  dispositions  of  the  instrument,  fairly 
and  reasonably  interpreted,  exhibit  a  clear  intention  of  the 
donor  to  bestow  upon  B  some  estate,  interest,  or  right  of 
property,  which  is  not  the  donor's,  but  which  belongs  to  A, 
and  at  the  same  time  to  give  to  A  some  benefits  derived  from 
the  donor's  own  property.^  <^    It  is  immaterial,  however, 

§  472,  1  Forrester  v.  Cotton,  1  Eden,  531 ;  Judd  v.  Pratt,  13  Ves.  168, 
15  Ves.  390;  Dashwood  v.  Peyton,  18  Ves.  27;  Blake  v.  Bunbury,  1  Ves. 
514,  4  Brown  Ch.  21 ;  Rancliffe  v.  Lady  Parkyns,  6  Dow,  149,  179 ;  Dillon 
V.  Parker,  1  Swanst.  359,  Jacob,  505,  7  Bligh,  N    S.,  325,  1  Clark  &  F 

§472,    (a)    The  text  is   quoted  in  §  472,  (c)  The  text  is  cited  in  Bible 

Penn   v.   Guggenheimer,   76  Va.   839,  v,  Marshall,  103  Tenn.  324,  52  S.  W. 

846;    and  in    Herrick    v.  Miller,  69  1077;   and  Fifield  v.  Van  Wyck,  94 

Wash.  456,   125   Pac.   974.  Va.  557,  562,  64  Am.  St.  Rep.  745,  27 

§472,    (b)    The   text   is   quoted  in  S.   E.   446;    both   to   the    effect   that 

Battle  V.   Claiborne,   133  Tenn.   286,  no  case  is  presented  for   an    election 

180  S.  W.  584;  Herrick  v.  Miller,  69  where  the  donor  does  not  attempt  to 

Wash.   456,   125   Pac.   974;    cited,   in  dispose    of    property    not    his    own. 

Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Branden-  Cited,  also,  in  Gulf,  C.  &  S.  F.  Ry. 

burg  (Tex.  Civ.  App.),  167  S.  W.  170.  Co.  v.  Brandenburg  (Tex.  Civ.  App.), 


§  472  EQUITY    JURISPRUDENCE.  896 

whether  the  donor  knew  the  property  not  to  be  his  own,  or 
erroneously  conceived  it  to  be  his  own ;  for  in  either  case,  if 

303;  Jervoise  v.  Jervoise,  17  Beav.  566;  Padbnry  v.  Clark,  2  Macn.  &  G. 
298;  Lee  v.  Egremont,  5  De  Gex  &  S.  348;  Wintour  v.  Clifton,  21  Beav. 
447,  8  De  Gex,  M.  &  G.  641;  Stephens  v.  Stephens,  3  Drew.  697,  1 
De  Gex  &  J.  62;  Box  v.  Barrett,  L.  R.  3  Eq.  244;  Dummer  v.  Pitcher,  2 
Mylne  &  K.  262;  Shuttleworth  v.  Greaves,  4  Mylne  &  C.  35;  Maxwell  v. 
Maxwell,  2  De  Gex,  M.  &  G.  705,  16  Beav.  106;  Pickersgill  v.  Rodger, 
5  Ch.  Div.  163,  170;  Orrell  v.  On-ell,  L.  R.  6  Ch.  302,  304;  Wilkinson  v. 
Dent,  L.  R.  6  Ch.  339,  340 ;  Thompson  v.  Burra,  L.  R.  16  Eq.  592,  601 ; 
Wollaston  v.  King,  L.  R.  8  Eq.  165;  Maxwell  v.  Hyslop,  L.  R.  4  Eq.  407; 
Codrington  v.  Lindsay,  L.  R.  8  Ch.  578;  McElfresh  v.  Schley,  2  Gill,  182, 
201;  Jones  v.  Jones,  8  Gill,  197;  Waters  v.  Howard,  1  Md.  Ch.  112;  Hall 
v.  Hall,  I  Bland,  130,  135;  Wilson  v.  Arny,  1  Dev.  &  B.  Eq.  376,  377; 
Pennsylvania  Life  Ins.  Co.  v.  Stokes,  61  Pa.  St.  136,  2  Brewst.  590; 
Weeks  v.  Weeks,  77  N.  C.  421 ;  Havens  v.  Sackett,  15  N.  Y.  365 ;  Thomp- 
son v.  Thompson,  2  Strob.  Eq.  48;  O'Reilly  v.  Nicholson,  45  Mo.  160. 
The  ground  upon  which  the  doctrine  of  election  rests,  and  the  condition 
of  facts  necessary  to  raise  an  election,  were  carefully  considered  in  the 
recent  case  of  Codrington  v.  Lindsay,  L.  R.  8  Ch.  578,  587,  by  Lord  Sel- 
borne.  He  seems  to  reach  the  conclusion  that  there  are  two  grounds,  and 
two  conditions  of  fact  quite  distinct  from  each  other,  which  may  create 
the  necessity  for  an  election.  It  was  held  that  a  married  woman  was 
bound  to  elect  between  certain  benefits  given  to  her  by  a  marriage  settle- 
ment and  certain  property  of  her  own  to  which  she  was  entitled  independ- 
ently of  the  settlement,  but  which  had  been  embraced  within  its  terms. 
Lord  Chancellor  Selbome  thus  laid  down  the  general  doctrine  (pp.  586- 
588)  :  "I  lay  aside,  as  not  directly  relevant  to  the  present  question,  the 
whole  of  that  large  class  of  oases  of  election  upon  wills,  as  to  which 
Lord  Eldon,  in  Dashwood  v.  Peyton,  18  Ves.  41,  and  other  authorities, 
have  said  that  *a  clear  intention  on  the  part  of  the  testator  to  give  that 
which  is  not  his  property  is  always  required.'  ...  I  conceive  the  true 
rule  for  the  decision  of  this  case  to  be  that  which  is  so  well  stated  by 
Lord  Redesdale  in  Birmingham  v.  Kirwan,  2  Schoales  &  L.  444,  449,  viz. : 
'The  general  rule  is,  that  a  person  cannot  accept  and  reject  the  same  in- 
strument; and  this  is  the  foundation  of  the  law  of  election,  on  which 
courts  of  equity  particularly  have  grounded  a  variety  of  decisions  in  cases 
both  of  deeds   and  wills,   though   principally  in   cases   of  wills,   because 

167   S.   W.   170    (to  give   rise   to   an  N.  J.  Eq.  597,  40  Am.  St.  Rep.  532, 

election,  language   must  not   bo   am-  29    Atl.    187;    Matter    of    Zahrt,    94 

biguous).     See,      also,      in      general,  N.  Y.  605;  Asche  v.  Asche,  113  N.  Y. 

Wooley   V.    Scbracler,   116   III.   29,   4  232,  21  N.  E.  70. 
N.  E.  658;  Hattersley  v.  Bissett,  51 


897  CONCERNING    ELECTION.  §  472 

the  intention  to  dispose  of  it  clearly  appears,  the  necessity 
for  an  election  exists. ^  ^ 

deeds  being  generally  matter  of  contract,  the  contract  is  not  to  be  inter- 
preted otherwise  than  as  the  consideration  which  is  expressed  requires.' 
The  application  of  this  rule  is  illustrated  as  to  cases  of  voluntary  deeds 
by  Llewellyn  v.  Maokworth,  Barn.  Ch.  445,  and  Anderson  v.  Abbott,  2.3 
Beav.  457;  as  to  cases  of  contract  for  a  valuable  consideration  resting  in 
articles,  by  Savill  v.  Savill,  2  Coll.  C.  C.  721,  and  Brown  v.  Brown,  L.  R. 
2  Eq.  481;  and  as  to  contracts  for  value  completely  executed  by  convey- 
ance and  assignment,  by  Bigland  v.  Huddleston,  3  Brown  Ch.  285,  note ; 
Chetwynd  v.  Fleetwood,  4  Brown  Pari.  C,  ed.  of  1784,  435;  Green  v. 
Green,  2  Mer.  86;  Bacon  v.  Cosby,  4  De  Gex  &  S.  261;  Mosby  v.  Ward, 
29  Beav.  407;  and  Willoughby  v.  Middleton,  2  Johns.  &  H.  344.  In  two 
of  these  cases  (Green  v.  Green,  2  Mer.  86,  and  Willoughby  v.  Middleton, 
2  Johns.  &  H.  344),  the  husband's  father  was  a  party  to  an  antenuptial 
settlement,  and  part  of  the  consideration  proceeded  from  him.  Another 
(Chetwynd  v.  Fleetwood,  4  Brown  Pari.  C.  435),  was  a  case  of  .settle- 
ment for  value,  not  between  husband  and  wife  at  all,  nor  in  consideration 
of  marriage.  In  all  of  them  the  party  who,  claiming  by  a  title  not  bound 
by  the  deeds,  thereby  withdrew  part  of  the  consideration  for  which  the 
deeds  were  intended  to  be  made  was  held  obliged  to  give  up,  by  way  of 
compensation,  what  he  or  she  was  entitled  to  under  the  deeds,  or  ex  con- 
verso  (as  in  Chetwynd  v.  Fleetwood,  4  Brown  Pari.  C.  435),  was  held 
bound,  if  taking  the  benefit  of  the  deeds,  to  adopt  and  make  good  the 
contract  forming  the  consideration  for  those  benefits,  as  to  matters  by 
which,  without  such  election,  he  would  not  have  been  bound."  To  the 
same  effect,  in  Hyde  v.  Baldwin,  17  Pick.  303,  308,  Shaw,  C.  J.,  said  that 
it  was  a  well-settled  rule  in  equity  that  "a  man  shall  not  take  any  bene- 
ficial interest  under  a  will,  and  at  the  same  time  set  up  any  right  or  claim 
of  his  own,  even  if  otherwise  legal  and  well  founded,  which  shall  defeat, 
or  in  any  way  prevent,  the  full  effect  and  operation  of  every  part  of  the 
will."  See,  also,  Smith  v.  Guild,  34  Me.  443,  447;  Weeks  v.  Patten,  18 
Me.  42,  36  Am.  Dec.  696;  Hamblett  v.  Hamblett,  6  N.  H.  333;  Glen  v. 
Fisher,  6  Johns.  Ch.  33,  10  Am.  Dec.  310;  Fulton  v.  Moore,  25  Pa.  St. 
468;  Cauffman  v.  Cauffman,  17  Serg.  &  R.  16;  Preston  v.  Jones,  9  Pa.  St. 
456 ;  George  v.  Bussing,  15  B.  Mon.  558 ;  Buist  v.  Dawes,  3  Rich.  Eq.  281. 
§  472,  2  Cooper  v.  Cooper,  L.  R.  6  Ch.  15,  16,  20;  Grissell  v.  Swinhoe, 
L.  R.  7  Eq.  291;  Whistler  v.  Webster,  2  Ves.  370;  Thellusson  v.  Wood- 

§472,   (d)     The    text    is    cited    in       Va.  362;  Barrier  v.  Kelly  (Miss.),  33 
Paulus  V.  Beach,  127  Mo.  App.  255,       South.  974.     Compare  Battle  v.  Clai- 
104    S.    W.    1149.     See,   also,    to    the       borne,  133  Tenn.  286,  180  S.  W.  584. 
Bame  effect  Moore  v.  Harper,  27  W. 
1—57 


§  473  EQUITY    JUEISPRUDENCE.  898 

§  473.  Rule  of  Interpretation;  Donor  has  a  Partial  Inter- 
est; Strong  Leaning  Against  Election;  Extrinsic  Evidence 
of  Intention. — The  preceding  rule  is  fundamental  and  uni- 
versal. In  its  application  the  courts  have  settled  two  or 
three  important  rules  of  interpretation,  which  aid  them  in 
arriving  at  the  donor's  intent  in  such  instruments.  Where 
the  interest  of  the  supposed  donee,  A,  with  which  the  donor 
assumes  to  deal,  is  a  separate,  distinct,  certain  estate,  prop- 
erty, or  right  belonging  to  A  individually  and  solely,  and 
the  language  of  donation  identifies  such  estate,  property, 
or  right,  and  in  terms  of  specific  description  bestows  it  upon 
another  beneficiary,  no  doubt  as  to  the  donor's  intention 
can  exist;  there  is  no  room  for  interpretation;  a  case  of 
election  is  necessarily  presented.  "Wliere,  however,  the 
subject-matter  upon  which  the  instrument  operates  is  some- 
thing in  which  the  donor  himself  has  a  partial  interest,  and 
the  donee  has  also  a  partial  interest  in  it,  or  the  residue 
of  the  property  in  it,  and  the  language  of  donation  is  sus- 
ceptible of  a  construction  which  would  confine  it  to  this 
partial  interest  of  the  donor,  it  is  plain  that  a  judicial 
interpretation  is  needed  to  ascertain  the  real  intent.  Under 
these  circumstances,  whenever  the  testator  or  other  donor 
has  a  partial  interest  in  the  property  dealt  with,  it  is  well 
settled  that  the  courts  will  lean  most  strongly — as  far  as 
possible,  it  has  been  said — in  favor  of  an  interpretation 
which  will  confine  his  disposition  to  this  his  own  interest, — 
an  interpretation  which  will  show  an  intention  on  his  part 
to  deal  only  by  way  of  gift  with  this  partial  interest  which 
he  holds.  In  other  words,  the  difficulty  of  establishing  a 
case  for  an  election,  from  the  terms  of  a  donation,  is  much 
greater  where  the  donor  has  a  partial  interest  in  the  prop- 
erty bestowed,  than  where  he  assumes  to  give  an  estate  in 

ford,  13  Ves.  221;  Welby  v.  Welby,  2  Ves.  &  B.  199;  Whitley  v.  Whitley, 
31  Beav.  173;  Coutts  v.  Ackworth,  L.  R.  9  Eq.  519;  Stump  v.  Findlay, 
2  Rawle,  168,  174,  19  Am.  Dec.  632;  McGinnis  v.  McGinnis,  1  Ga.  496, 
503. 


899  CONCERNING   ELECTION.  §  473 

which,  as  a  matter  of  fact,  he  has  no  interest."^  ^  If  the 
language  of  the  donation  is  ambiguous,  so  that  its  correct 
interpretation  is  at  all  doubtful,  it  is  now  a  firmly  estab- 
lished rule  that  parol  evidence  of  matters  outside  the  in- 
strument cannot  be  admitted  for  the  purpose  of  showing  an 
intent  of  the  donor  to  dispose  of  property  which  he  knew 
did  not  belong  to  him,  and  thus  to  create  the  necessity  for 
an  election.  The  intent  of  the  donor  to  dispose  of  that 
which  is  not  his  ought  to  appear  upon  the  instrument. 
There  were  early  decisions  which  acted  upon  another  view, 
and  received  such  evidence  as  controlling,  but  they  have 
been  completely  overruled  by  subsequent  authorities.  Of 
course,  extrinsic  evidence  is  always  admissible  in  such  cases, 
as  well  as  in  all  others  arising  upon  wills  and  deeds,  in  order 
to  show  the  surrounding  circumstances,  the  nature  and  situ- 
ation of  the  property,  the  relations  of  the  donor  to  the 
beneficiaries,  and  the  like  facts,  which  place  the  court  in  the 
shoes  of  the  donor ;  but  such  evidence  can  go  no  further. ^  ^ 

§  473,  1  Lord  Rancliffe  v.  Lady  Parkyns,  6  Dow,  185 ;  Maddison  v. 
Chapman,  1  Johns.  &  H.  470;  Wintour  v.  Clifton,  8  De  Gex,  M.  &  G. 
641,  650,  per  Turner,  L.  J.;  Havens  v.  Sackett,  15  N.  Y.  365.  In  Win- 
tour  V.  Clifton,  8  De  Gex,  M.  &  G.  641,  650,  Turner,  L.  J.,  said:  "The 
authorities,  as  I  understand  it,  mean  no  naore  than  to  point  out  forcibly 
the  difficulty  there  is  in  raising  a  case  of  election  where  the  testator  has 
a  limited  interest  in  the  property  as  to  which  the  election  is  to  be  raised; 
and  no  doubt  there  is  more  difficulty  in  such  cases  than  in  the  ordinary 
case  of  the  disposition  of  an  estate  belonging  to  another  person,  and  in 
which  the  testator  had  no  interest,  inasmuch  as  every  testator  must  prima 
facie  be  taken  to  have  intended  to  dispose  only  of  what  he  had  power  to 
dispose  of;  and,  as  in  order  to  raise  a  case  of  election,  it  must  be  clear 
that  there  was  an  intention  on  the  part  of  the  testator  to  dispose  of  what 
he  had  not  the  right  or  power  to  dispose  of."  See,  also,  cases  in  preced- 
ing note,  and  those  cited  subsequently,  under  the  head  of  election,  in  case 
of  dower  and  other  partial  interests. 

§  473,  2  Clementson  v.  Gandy,  1  Keen,  309 ;  Smith  v.  Lyne,  2  Younge 
&  C.  Ch.  345;  Honeywood  v.  Forster,  30  Beav.  14;  Seaman  v.  Woods,  24 
Beav.  372;  Allen  v.  Anderson,  5  Hare,  163;  Blake  v.  Bunbury,  1  Ves. 

§473,   (a)    The  text  is  quoted  in  §473,   (b)   The  text  is   quoted  in 

Toney  v.  Spragins,  80  Ala.  541.     See,  Battle  v.   Claiborne,   133  Tenn.   286, 

also,    Sherman    v.    Lewia,   44    Minn.  180  S.  W.  584;  cited  to  this  effect  in 

107,  46  N.  W.  318.  La  Tourette  v.  La  Tourette,  15  Ariz. 


§  474  EQUITY    JUEISPRUDENCE.  900 

§  474.  Rule  of  Interpretation;  Donor  has  a  Partial  In- 
terest, and  Makes  a  General  Gift. — A  second  important  rule 
of  interpretation  is,  that  where  a  testator  has  a  partial  in- 
terest in  the  subject-matter  dealt  with,  a  general  devise  of 
the  property,  or  gift  of  the  property  described  only  in  gen- 
eral terms  or  in  a  general  manner,  will  ordinarily  be  con- 
strued as  including  and  operating  upon  the  partial  interest 
alone  or  partial  property  held  by  the  donor,  and  not  as  ex- 
tending to  and  disposing  of  the  residuum  of  interest  belong- 
ing to  the  donee.  But  it  should  also  be  observed  that  even 
where  the  language  of  the  gift  is  thus  general,  the  donor 
may  otherwise  show  an  intention  by  means  of  it  to  bestow 
the  property  or  interest  not  absolutely  his  own.^  * 

523;  Stratton  v.  Best,  1  Ves.  285;  Druce  v.  Denison,  6  Ves.  385;  Dummer 
V.  Pitcher,  2  Mylne  &  K.  262 ;  Crabb  v.  Crabb,  1  Mylne  &  K.  511,  5  Sim. 
25;  Philadelphia  v.  Davis,  1  Whart.  490;  Timberlake  v.  Parish,  5  Dana, 
345;  Waters  v.  Howard,  1  Md.  Ch.  112;  McElfresh  v.  Schley,  2  Gill,  182; 
Jones  V.  Jones,  8  Gill,  197.  Notwithstanding  this  array  of  unanimous 
authorities,  in  the  very  recent  ease  of  Pickersgill  v,  Rodger,  5  Ch.  Div. 
163,  170,  where  the  only  question  for  decision  was  whether  a  testatrix 
had  created  the  necessity  for  an  election,  the  very  able  and  learned  master 
of  rolls,  Jessel,  used  the  following  language :  "The  law  upon  this  point 
I  take  to  be  well  settled,  and  it  is  this:  that  before  you  attribute  an  in- 
tention to  a  testator  or  testatrix  to  dispose  of  that  which  does  not  belong 
to  him  or  her,  you  must  be  satisfied  from  the  form  of  the  instrument  that 
it  does  dispose  of  the  property  which  does  not  belong  to  him  or  her; 
and  that  is  all.  The  presumption,  in  the  absence  of  evidence  to  the  con- 
trary, is,  that  the  testator,  by  his  will,  intends  merely  to  devise  or  be- 
queath that  which  belongs  to  him.  On  the  other  hand,  it  is  only  a  pre- 
sumption, which  may  be  rebutted  even  by  parol  evidence;  and  it  may  be 
rebutted  by  evidence  showing  that,  under  a  misapprehension  of  law,  the 
testator  believed  that  the  property  which  did  not  belong  to  him  did  really 
belong  to  him."  It  is  certainly  dififieult  to  reconcile  this  passage  with  the 
decisions  cited  above  in  this  note. 

§  474,  1  Wintour  v.  Clifton,  8  De  Gex,  M.  &  G.  641,  650;  Shuttleworth 
V.  Greaves,  4  Mylne  &  C.  35;  Dummer  v.  Pitcher,  2  Mylne  &  K.  262; 

200,  Ann.   Gas.   1915B,   70,   137   Pac.  318;   Tracey  v.  Shumate,  22  W.  Va. 

426;  McDonald  v.  Shaw,  92  Ark.  15,  474,  499;  Atkinson  v.  Sutton,  23  W. 

28  L.  E.  A.   (N.  S.)   657,  121  S.  W.  Va.  197. 

935;  Paulus  v.  Beach,  127  Mo.  App.  §474,  (a)  The  text  is  cited  in  Mc- 

255,  104  S.  W.  1149.     See,  also,  Sher-  Donald  v.  Shaw,  92  Ark.  15,  28  L.  B. 

man  v.  Lewis,  44  Minn.  107,  46  N.  W.  A.  (N.  S.)  657,  121  S.  W.  935.    See, 


901  CONCERNING   ELECTION.  §  475 

§  475.  Other  Particular  Rules  of  Interpretation. — In 
addition  to  these  somewhat  general  rules  of  interpretation, 
there  are  one  or  two  particular  rules  which  belong  to  this 
branch  of  the  subject.     No  case  for  an  election  is  presented 

Usticke  V.  Peters,  4  Kay  &  J.  437;  Honeywood  v.  Forster,  30  Beav.  14; 
Johnson  v.  Telford,  1  Russ.  &  M.  244;  Brodie  v.  Barry,  2  Ves.  &  B.  127; 
Maxwell  v.  Maxwell,  2  De  Gex,  M.  &  G.  705,  713,  16  Beav.  106;  Orrell 
V.  Orrell,  L.  R.  6  Ch.  302;  Havens  v.  Sackett,  15  N.  Y.  365;  Hall  v.  Hall, 

1  Bland,  130,  135;  Gable  v.  Daub,  40  Pa.  St.  217.  And  see  cases  cited 
subsequently,  under  the  head  of  election  in  case  of  dower.'*  Although 
the  rule  as  stated  in  the  text  is  supported  by  an  overwhelming  weight  of 
authority,  it  is  sometimes  very  difficult  of  application.  I  shall  therefore 
refer  to  a  few  cases  by  way  of  illustration.  The  language  of  Turner, 
L.  J.,  in  Wintour  v.  Clifton,  8  De  Gex,  M.  &  G.  641,  650,  gives  the  rule 
of  the  text  in  both  of  its  branches:  "I  think  that  if  the  words  of  a  will 
be  such  as  to  embrace  different  subjects,  the  context  of  the  will  may  be 
resorted  to  for  the  purpose  of  ascertaining  to  which  of  these  subjects  the 
words  were  intended  to  apply;  and  I  think  that  the  question  in  every  case 
upon  the  construction  of  a  will  must  be.  What  was  the  intention  of  the 
testator'?  and  that  if  the  intention  can  be  collected  from  the  context,  it 
is  the  duty  of  the  court  to  give  effect  to  it,  as  much  as  if  it  was  in  tenns 
expressed,  and  no  less  so  in  eases  of  election  than  in  other  cases.  The 
authorities  on  this  point  mean  no  more  than  to  point  out  forcibly  the 
difficulty  there  is  in  raising  a  case  of  election  where  the  testator  has  a 
limited  interest  in  the  property  as  to  which  the  election  is  to  be  raised; 
and  no  doubt  there  is  more  difficulty  in  such  cases  than  in  the  ordinary 
case  of  the  disposition  of  an  estate  belonging  to  another  person,  and  in 
which  the  testator  had  no  interest,  inasmuch  as  every  testator  must  prima 
facie  be  taken  to  have  intended  to  dispose  only  of  what  he  had  the  power 
to  dispose  of;  and,  as  in  order  to  raise  a  case  of  election,  it  must  be  clear 
that  there  was  an  intention  on  the  part  of  the  testator  to  dispose  of  what 
he  had  not  the  right  or  power  to  dispose  of."     In  Maxwell  v.  Maxwell, 

2  De  Gex,  M.  &  G.  705,  713,  a  testator  by  an  English  will  in  tei-ms  gave 
"all  his  real  and  personal  estate  whatsoever  and  wheresoever,"  etc.  This 
language  was  not  sufficient  by  the  Scotch  law  to  embrace  lands  owned 
by  the  testator  in  Scotland,  which  therefore  descended  to  his  heir  at  law; 
and  the  only  question  was,  whether  by  this  general  gift  the  testator  iti- 
tended  to  embrace  the  Scotch  lands,  or  to  disjoose  of  the  English  prop- 
erty alone.  Knight  Bruce,  L.  J.,  said  (p.  713)  :  "According  to  the  prin- 
ciples or  rules  of  construction  which  the  English  law  applies,  if  not  to 

also,  In  re  Gilmore,  81  Cal.  240,  22  §474,   (b)  See  vost,  §§492-502. 

Pac.  655. 


§  475  EQUITY   JURISPRUDENCE.  902 

if  the  language  of  donation  shows  that  the  donor  is  doubt- 
ful whether  the  property  belongs  to  himself  or  not,  and  that 

all  instruments,  at  least  to  testamentary  instruments  liable  to  interpreta- 
tion, the  generality,  the  mere  universality,  of  a  gift  of  property  is  not 
sufficient  to  demonstrate  or  create  a  ground  of  inference  that  the  giver 
meant  it  to  extend  to  ptoperty  incapable  of  being  given  by  the  particular 
act.  If  he  had  specifically  mentioned  property  not  capable  of  being  so 
given,  the  case  is  not  the  same."  Cranworth,  L.  J.,  said  (p.  715) :  "I 
take  the  general  rule  to  be  that  which  was  referred  to  by  Sir  John  Leach, 
in  Wentworth  v.  Cox,  6  Madd.  363,  that  a  designation  of  the  subject 
intended  to  be  affected  by  an  instrument  in  general  words  imports  prima 
facie  that  property  only  upon  which  the  instrument  is  capable  of  operat- 
ing." In  Orrell  v.  Orrell,  L.  R.  6  Ch.  302,  305,  which  was  a  similar  case, 
the  testator  gave  "all  the  rest  and  residue  of  my  real  estate  situate  in 
any  part  of  the  United  Kingdom  or  elsewhere."  The  court,  while  quot- 
ing and  adopting  the  rule  as  laid  down  in  Maxwell  v.  Maxwell,  2  De  Gex, 
M.  &  G.  705,  713,  held  that  the  peculiar  language  of  the  testator,  "in  any 
part  of,"  showed  his  intention  to  dispose  of  his  Scotch  lands  as  well  as 
those  in  England,  and  therefore  the  rule  did  not  apply.  In  Johnson  v. 
Telford,  1  Russ.  &  M.  248,  which  resembled  the  two  preceding  cases.  Sir 
John  Leach  thus  stated  the  rule :  "In  the  case  of  Brodie  v.  Barry,  2  Ves. 
&  B.  127,  the  Scotch  estate  was  mentioned  in  the  will,  and  especially 
intended  by  the  testator  to  pass  thereby.  In  this  will  no  notice  whatever 
is  taken  of  the  Scotch  estate,  and  the  question  is,  whether  it  is  clearly 
to  be  collected  from  the  general  words  used  that  the  testator  meant  to 
pass  his  Scotch  estate.  Where  a  testator  uses  only  general  words,  it  is 
to  be  intended  he  means  those  general  words  to  be  applied  to  such  prop- 
erty as  will  in  its  nature  pass  by  the  will."  In  Honeywood  v.  Forster, 
30  Beav.  14,  a  testator  owned  freeholds  in  fee,  and  was  tenant  in  tail  of 
the  copyholds.  They  were  intermixed;  part  of  the  copyholds  were  in  his 
own  occupation,  and  part,  with  parts  of  the  freeholds,  in  the  occupation 
of  tenants  upon  leases  at  one  rent.  By  his  will  he  devised  "all  his  real 
estates"  to  the  defendants,  and  gave  all  the  lands  occupied  by  him  to 
liis  wife  for  life,  and  confirmed  the  tenants  in  their  occupations  for 
twenty-one  years,  and  also  gave  benefits  to  the  heir  in  tail  of  the  copy- 
holds. The  question  for  decision  was,  whether  this  heir  in  tail  was  put 
to  an  election  between  the  copyholds  descending  to  him  as  heir  in  tail  and 
the  benefits  given  by  the  will.  Sir  John  Romilly,  M.  R.,  said :  "If  a 
testator  says,  'I  give  all  the  property  I  have  in  the  world  to  A  B,'  and  he 
leaves  a  large  legacy  to  his  heir  in  tail,  that  will  not  raise  a  case  of  elec- 
tion against  such  heir,  because  the  testator  only  gives  what  he  has.  It 
occurred  to  me  at  first  that  such  was  the  character  of  the  present  will; 
but  on  the  facts  of  the  case  being  brought  to  my  attention,  it  became 


903  CONCERNING    ELECTION".  §  475 

lie  only  intends  to  bestow  it  if  it  is  his  own;  for  example, 
where  he  directs  a  different  disposition,  in  case  it  turns  out 

plain  that  such  was  not  the  case.  .  .  .  [After  recapitulating  the  provi- 
sions of  the  will  and  the  situation  of  the  property.]  I  think  that  in  this 
state  of  circumstances,  coupled  with  the  fact  of  the  nature  and  holding 
of  the  property,  there  is  an  intention  shown  on  the  face  of  the  will  to 
dispose  of  these  copyholds  away  from  the  heir  in  tail."  The  heir  was 
thei'efore  held  bound  to  elect.  The  cases  of  Dummer  v.  Pitcher,  2  Mylne 
&  K.  262,  and  Shuttleworth  v.  Greaves,  4  Mylne  &  C.  35,  well  illustrate 
the  rule  of  the  text  in  both  of  its  branches.  In  Dummer  v.  Pitcher,  2 
Mylne  &  K,  262,  the  testator's  will  said:  "I  bequeath  the  rents  of  my 
leasehold  houses  and  the  interest  of  all  my  funded  property  or  estate." 
The  testator  had  in  fact  no  funded  property  at  the  date  of  his  will,  but 
there  was  funded  property  originally  belonging  to  his  wife,  and  standing 
in  the  joint  names  of  her  and  himself.  After  his  death,  the  wife  claimed 
this  funded  property  by  right  of  survivorship,  and  as  she  took  benefits 
under  the  will,  it  was  contended  that  she  must  elect  between  these  benefits 
and  her  own  funded  property,  which,  it  was  claimed,  the  will  had  given 
away.  Lord  Chancellor  Brougham  held,  affirming  the  decision  of  the  vice- 
chancellor,  that,  although  the  testator  had  no  funded  property  of  his  own 
at  the  date  of  his  will,  his  words  might  well  be  construed  as  intended  to 
apply  to  any  funded  property  which  he  might  have  at  his  death,  and 
that  therefore  he  was  not  to  be  regarded  as  intending  to  dispose  of  the 
funded  property  standing  in  the  joint  names  of  himself  and  his  wife,  and 
belonging  to  her,  and  consequently  that  no  case  for  an  election  arose. 
In  Shuttleworth  v.  Greaves,  4  Mylne  &  C.  35,  the  will  said:  "I  bequeath 
all  my  shares  in  the  Nottingham  Canal  Navigation."  At  the  time  arid 
down  to  his  death  he  had  no  such  shares  of  his  own,  but  had  certain 
shares  of  that  same  canal  company  standing  in  the  joint  names  of  him- 
self and  his  wife,  and  really  belonging  to  her.  Under  the  like  circum- 
stances and  contention  as  in  the  last  case,  it  was  held  that  the  words  of 
bequest  showed  an  intention  to  give  away  these  very  shares  belonging 
to  his  wife,  and  therefore  she  was  bound  to  elect.  By  comparing  these  two 
cases,  the  dividing  line,  though  narrow,  is  seen  to  be  really  substantial. 
In  the  first,  the  words  of  gift  were  most  general,  not  referring  to  or 
describing  any  specific  property.  In  the  second,  the  same  words,  although 
general  with  respect  to  amount,  do  apply  to  and  describe  certain  specific 
property,  and  so  clearly  identify  it  that  there  could  be  no  doubt  of  the 
testator's  intention  to  bequeath  it, — "all  my  shares,"  etc.  See,  also. 
Havens  v.  Sackett,  15  N.  Y.  365.  The  American  cases  involving  and 
illustrating  this  rule  have  generally  been  those  where  a  testator  has,  in 
general  terms,  given  land  in  which  his  wife  held  a  dower  right.  Many 
of  them  will  be  found  cited  under  subsequent  paragraphs. 


§  475  EQUITY    JURISPEUDENCE.  904 

that  he  has  no  power  to  make  the  gift,  or  where  he,  in  terms, 
makes  the  disposition,  if  he  has  tlie  power  to  do  so,  or  so  far 
as  he  lawfully  can,  and  the  like.i  ^  Since  the  necessity  of  an 
election  is  only  created  by  something  in  the  nature  of  a  gift 
or  disposition  of  property,  it  follows  that  an  erroneous  re- 
cital in  a  will,  and  misconception  of  the  testator  as  to  the 
effect  of  the  rights  of  others,  will  not  raise  a  case  of  elec- 
tion, though  the  testator,  in  consequence  of  his  mistake  as  to 
those  rights,  gives  more  to  one  person  than  to  another;  the 
former  is  not  bound  to  compensate  the  latter.^  ^  The  doc- 
trine of  election  is  not  applicable  to  cases  where  the  testator, 
erroneously  thinking  certain  property  is  his  own,  gives  it  to 
a  donee  to  whom  in  fact  it  belongs,  and  also  gives  him  other 
property  which  is  really  the  testator's  own;  for  in  such 
cases  the  testator  intends  that  the  devisee  shall  have  both, 
though  he  is  mistaken  as  to  his  own  title  to  one.^  ^  Nor 
does  the  doctrine  appl}^  unless  the  donee,  who,  it  is  claimed, 
ought  to  elect,  is  entitled  in  his  own  right  to  the  property 
given  to  another,  and  not  in  his  representative  capacity; 
although,  in  effect,  he  may  be  beneficially  interested ;  as,  for 
example,  where  he  takes  as  his  wife's  administrator.* 

§475,  iBor  v.  Bor,  3  Brown  Pari.  C,  Tomlins's  ed.,  167;  Church  v. 
Kemble,  5  Sim.  525. 

§  475,  2  Box  V.  Barrett,  L.  R.  3  Eq.  244;  Dashwood  v.  Peyton,  18  Ves. 
41;  Blake  v.  Bunbury,  1  Ves.  515,  523;  Forrester  v.  Cotton,  Amb.  388, 
1  Eden,  532,  535;  and  see  Langslow  v.  Langslow,  21  Beav.  552;  Clarke,  v. 
Guise,  2  Ves.  617,  618. 

§  475,  3  Cull  V.  Showell,  Amb.  727. 

§  475,  4  Grissell  v.  Swinhoe,  L.  R.  7  Eq.  291;  and  see  Cooper  v.  Cooper, 
L.  R.  6  Ch.  15,  in  which  Grissell  v.  Swinhoe,  L.  R.  7  Eq.  291,  is  explained. 

§  475,  (a)  Where  the  testator  says,  Ann.  Cas.  563,   10  L.  R.  A.   (N.   S.) 

in  effect,  "If  I  am  owner  of  the  prop-  590,  111  N.  W.  305. 

erty  at  the  time  of  my  death,  I  de-  §  475,     (b)     See,     also.    Smith    v. 

vise  it  to  B,"  and  the  property  in  Smith,  113  Md.  495,  140  Am.  St.  Rep. 

fact  belongs   to  A,   no   case  is  pre-  ^35,  31  L.  R.  A.  (N.  S.)  922,  77  Atl. 

975 
sented  for  an  election  by  A  between 

,                i.          -I     -i!.          J    T_     .t.  §  475,    (c)    The   text   is   quoted   in 

such  property  and  gifts  made  by  the  ^  ^                    ^     „ 

.■■,,.;,,                                   -s  La  Tourette  v.  La  Tourette,  15  Ariz, 

will  to  A:  Appleby  v.  Appleby,  100  ^^    ^^    ^                     ^3^   p^^^ 

Mmn.  408,  117  Am.  St.  Rep.  709,  10       ^^q 


905  CONCERNING   ELECTION".  §§476,477 

§  476.  First  Class  of  Cases. — I  shall  now  describe  and 
discuss  the  most  important  of  the  cases  which  have  arisen, 
and  in  respect  of  which  it  has  been  settled  that  the  necessity 
for  an  election  does  or  does  not  exist.  By  a  line  of  separa- 
tion which  the  foregoing  paragraphs  show  not  to  be  merely 
arbitrary,  I  shall  arrange  these  cases  in  two  main  divisions, 
namely:  1.  Those  where  the  donor  assumes  to  give  prop- 
erty belonging  entirely  to  another,  and  in  which  he  himself 
has  no  interest;  2.  Those  where  the  donor  gives  property 
in  which  he  himself  has  a  partial  interest,  while  a  partial 
interest  therein  is  also  held  by  another. 

First  Class. — Cases  in  which  the  donor  assumes  to  give 
specific  property  belonging  entirely  to  another,  where  he 
himself  has  no  interest  in  it,  and  no  power  of  disposition 
over  it. 

§  477.     Ordinary  Case:   Gift  of  Specific  Property.— The 

simplest  case  is  that  in  which  the  donor,  by  language  of  de- 
scription sufficient  to  designate  the  subject-matter,  and  by 
terms  of  donation  sufficient  to  effect  a  transfer  if  they  oper- 
ated upon  property  of  his  own,  bestows  upon  B  some  specific 
estate,  interest,  or  fund,  which  in  fact  belongs  entirely  to 
A,  and  by  the  same  instrument  confers  upon  A  some  benefit 
out  of  the  donor's  own  property.  Under  these  circum- 
stances a  case  for  an  election  always  arises.  The  whole 
effect  depends  upon  the  question  whether  there  is  such  a 
gift ;  and  if  so,  there  is  really  no  room  for  interpretation  or 
construction.     No  discussion  of  this  case  is  needed.^ 

§477,  1  Dillon  v.  Parker,  1  Swanst.  359,  376,  381,  394,  and  notes  by 
Mr.  Swanston,  with  the  cases  cited;  Gretton  v.  Haward,  1  Swanst.  409, 
413,  420,  425,  433,  and  notes  with  the  cases  cited:  Noys  v.  Mordaunt, 
2  Vern.  581 ;  Streatfield  v.  Streatfield,  Cas.  t.  Talb.  176,  1  Lead.  Cas.  Eq., 
4th  Am.  ed.,  503,  510,  541,  and  cases  cited  in  notes  of  the  English  and 
American  editors ;  Blake  v.  Bnnbury,  4  Brown  Ch.  21 ;  Yilla  Real  v.  Lord 
Galway,  1  Brown  Ch.  292,  note;  Ardesoife  v.  Bennett,  1  Dick.  463; 
Whistler  v.  Webster,  2  Ves.  367 ;  Ward  v.  Baugh,  4  Ves.  623 ;  Lady  Caven 
V.  Pulteney,  2  Ves  544,  560;  Dash  wood  v.  Peyton,  18  Ves.  27,  49;  Welby 


§478 


EQUITY    JURISPEUDENCE. 


906 


§  478.  Cases  of  Election  Arising  Under  Appointments  in 
Pursuance  of  Powers. — As  cases  of  this  description  are  very- 
rare  in  the  United  States,  a  very  brief  and  condensed  treat- 
ment of  the  subject  will  suffice.  Cases  for  an  election  may 
arise  under  appointments  made  in  pursuance  of  powers. 
In  the  case  of  a  void  appointment  by  will  to  a  stranger  to 
the  power,  and  a  devise  or  bequest  of  the  appointor's  own 
property  to  the  object  of  it,  who  takes  also  under  the  power 
as  in  default  of  appointment,  such  person  must  elect  between 
what  comes  to  him  under  the  power  from  the  default  of  a 
valid  appointment,  and  the  benefits  conferred  by  the  ap- 
pointor's will.i  a     Iji  order  to  raise  a  case  of  election,  where 

V.  Welby,  2  Ves.  &  B.  190;  Lord  Rancliffe  v.  Parkyns,  6  Dow,  149,  179; 
Ker  V.  Wauchope,  1  Bligh,  1,  25."-     And  see  cases  cited  in  previous  notes. 
§478,  1  Whistler  v.  Webster,  2  Ves.  367;  Tomkyns  v.  Blane,  28  Beav. 
423;  England  v.  Lavers,  L.  R.  3  Eq.  63;  Reid  v.  Reid,  25  Beav.  469. 


§  477,  (a)  This  paragraph  of  the 
text  is  cited  in  Sorenson  v.  Carey,  96 
Minn.  202,  104  N.  W.  958.  See,  also, 
Moore  v.  Baker,  4  Ind.  App.  115,  51 
Am.  St.  Rep.  203,  30  N.  E.  629;  Beet- 
son  V.  Stoops,  186  N.  Y.  456,  9  Ann. 
Cas.  953,  79  N.  E.  731;  Morath's  Ex'r 
V  Weber's  Adm'r,  124  Ky.  128,  98 
S.  W.  321.  In  Fitzhugh  v.  Hubbard, 
41  Ark.  64,  a  testator  gave  to  his 
brother  an  indebtedness  due  from 
him,  and  the  remainder  of  his  estate 
to  his  sister.  This  indebtedness  had 
in  fact  been  transferred  by  the  tes- 
tator before  the  execution  of  the  will 
to  the  sister.  Held,  that  the  sister 
was  bound  to  elect  whether  to  con- 
firm the  will,  or  renounce  and  hold 
the  debt.  In  McCracken  v.  McBee, 
96  Ark.  251,  131  S.  W.  450,  testator 
gave  legacies  to  A,  B,  and  C,  and  di- 
rected that  the  proceeds  of  a  life  in- 
surance policy  of  which  A,  B  and  C 
were  beneficiaries  should  be  paid  to 
them  and  other  persons;  held,  A,  B 
and    C  must   elect  whether  to   take 


under  or  in  opposition  to  the  will.  In 
Job  Haines  Home  for  Aged  People 
V.  Keene  (N.  J.  Eq.),  101  Atl.  512, 
testator  devised  to  his  son  land 
which  was  owned  by  himself  and 
wife  as  tenants  by  the  entirety,  and 
gave  the  wife  a  life  estate  in  the 
land  and  certain  personal  property; 
held,  this  put  the  widow  to  an  elec- 
tion whether  to  take  her  property 
or  the  gift  given  by  the  will. 

§478,  (a)  See,  also.  White  v. 
White,  22  Ch.  Div.  555;  In  re  Tan- 
cred's  Settlement,  [1903]  1  Ch.  715. 
So,  when  a  testatrix  by  her  will,  pur- 
porting to  exercise  a  power  of  ap- 
pointment which  she  erroneously  sup- 
posed herself  to  possess,  appointed 
property  to  which  one  J.  was  en- 
titled to  third  persons,  and  by  a 
codicil  gave  J.  other  property,  over 
which  she  had  full  testamentary 
power,  J.  is  put  to  an  election 
whether  to  take  under  or  against  the 
will;  In  re  Brooksbank,  34  Ch.  Div. 
160. 


907  CONCERNING   ELECTION.  §  479 

the  appointor  appoints  the  property  subject  to  tlie  power 
to  a  stranger,  he  must  give  some  property  of  his  own  to  the 
object  of  the  power  ;2  for  if  no  property  be  given  but  what 
is  subject  to  the  power,  there  is  nothing  out  of  which  com- 
pensation can  be  made.^  ^ 

§  479.  An  object  of  two  powers  improperly  excluded  by 
an  appointment  under  one  is  not  debarred  in  consequence 
from  claims  upon  the  other,  and  no  case  of  election  arises. 
Thus  if  there  are  two  powers,  one  exclusive  and  the  other 
not,  and  there  are  several  objects  of  both,  an  appointment 
of  the  whole  fund  under  the  exclusive  power  to  A,  who  is 
an  object  of  both  powers,  and  an  appointment  of  the  whole 
fund  under  the  non-exclusive  power  to  other  objects,  ex- 
cluding A,  will  not  prevent  A's  sharing  in  the  property  dis- 
posable of  by  the  second  power,  which  had  been  defectively 
appointed  by  reason  of  his  improper  exclusion,  and  he  is 
not  bound  to  elect.^  And  where  there  are  two  powers,  both 
exclusive,  children  and  grandchildren  being  the  objects  of 
one,  and  children  only  of  the  other,  and  an  appointment  is 
made  under  the  former  to  children  only,  and  under  the  lat- 

§  478,  2  In  re  Fowler,  27  Beav.  362. 

§  478,  3  Bristowe  v.  Warde,  2  Ves.  336.  In  Coutts  v.  Ackwortli,  L.  R. 
9  Eq.  519,  a  lady,  on  her  marriage,  appointed  three  thousand  pounds  to 
trustees,  the  interest  to  be  paid  to  her  husband  for  life,  and  after  his 
decease  the  capital  was  to  go  over.  The  deed  contained  a  power  to  revoke 
the  trusts  subsequent  to  the  life  estate  of  the  husband.  By  her  will, 
after  marriage,  she  purported  to  revoke  all  the  trusts  of  the  deed,  and 
gave  one  thousand  pounds  to  her  husband,  and  two  thousand  pounds  to 
another  person.  It  was  held  that  the  testatrix  having  revoked  all  the 
trusts  of  the  deed,  while  the  power  of  revocation  only  extended  to  the 
remainder  after  her  husband's  life  estate,  she  had  thus  attempted  to  deal 
with  his  interest,  and  the  husband  was  therefore  obliged  to  elect  between 
the  one  thousand  pounds  given  him  by  the  will  and  the  interest  on  the 
three  thousand  pounds  for  his  life  given  him  by  the  original  deed  of 
appointment. 

§  479,  1  In  re  Aplin,  13  Week.  Rep.  1062. 

§478,  (b)  See,  to  the  same  effect,  Graham  v.  Whitridge  (Md.),  57  Atl. 
609. 


§  480  EQUITY   JURISPRUDENCE.  908 

ter  to  children  and  a  grandchild  (who  is  not  therefore  an 
object),  the  children  are  not  compellable  to  elect,  in  order 
to  give  effect  to  the  void  appointment  to  the  grandchild. 2 
A  case  of  election  will  not  arise  if  a  testator  appointor 
merely  requests  or  directs  the  appointees,  who  are  also 
legatees  of  other  property,  to  give  the  appointed  property 
to  strangers  to  the  power.^  Nor  will  a  case  of  election 
arise  where  the  appointment  is  absolute,  with  a  subsequent 
superadded  direction  or  condition  in  favor  of  strangers.^ 
But  a  case  of  election  does  arise  where  the  testator  directs 
that  the  legacies  which  he  also  gives  to  the  appointees  shall 
be  forfeited  if  the  direction  as  to  the  appointed  fund  is  not 
complied  with.^ 

§  480.  No  case  of  election  arises  under  a  void  appoint- 
ment, where  the  appointor  declares  that  he  makes  it  only 

§  479,  2  In  re  Fowler,  27  Beav.  362. 

§  479,  3  Blaekett  v.  Lamb,  14  Beav.  482.  The  reason  of  this  rule  was 
thus  stated  by  Sir  John  Romilly,  M.  R. :  "The  superadded  words  used  by 
the  testator  here  neither  are  nor  profess  to  be  any  appointment  over  the 
fund  itself,  but  they  purport  to  raise  an  obligation  on  the  conscience  of 
the  person  taking  the  benefit  of  the  gift,  to  transfer  that  benefit,  after 
his  decease,  to  bis  children.  I  am  of  opinion  that  if  the  words  had  been 
used  by  the  testator  with  reference  to  a  fund  which  was  wholly  within 
his  own  control,  to  deal  with  as  he  might  think  fit,  these  words  would 
have  created  a  trust,  and  that  his  children,  taking  the  gifts  under  the 
will  of  the  testator,  would  have  taken  them  charged  with  the  duty  of  dis- 
posing of  them  according  to  that  will." 

§  479,  4  Woolridge  v.  Woolridge,  1  Johns.  63 ;  Carver  v.  Bowles,  2 
Russ.  &  M.  301;  Churchill  v.  Churchill,  L.  R.  5  Eq.  44;  Wollaston  v. 
King,  L.  R.  8  Eq.  165;  but  see  Moriarty  v,  Martin,  3  Ir.  Ch.  26.  In 
Woolridge  v.  Woolridge,  1  Johns.  63,  the  rule  was  laid  down,  "that  where 
there  was  an  absolute  appointment  by  will  in  favor  of  a  proper  object 
of  the  power,  and  that  appointment  is  followed  by  attempts  to  modify 
the  interest  so  appointed  in  a  manner  which  the  law  will  not  allow,  the 
court  reads  the  will  as  if  all  the  passages  in  which  such  attempts  are 
made  were  swept  out  of  it  for  all  intents  and  purposes."  See  Wallinger 
v.  Wallinger,  L.  R.  9  Eq.  301. 

§  479,  5  King  v.  King,  15  Ir.  Ch.  479 ;  Boughton  v.  Boughton,  2  Ves. 
Sr.  12. 


909 


CONCERNING   ELECTION. 


§481 


in  case  he  has  the  power  to  do  so.i  An  appointee  under 
two  appointments,  one  of  which  becomes  inoperative,  is 
not  bound  to  elect  between  the  well-appointed  fund  and 
an  interest  to  which  he  becomes  entitled,  as  next  of  kin  to 
the  appointor,  in  the  ill-appointed  fund  which  devolves  on 
such  next  of  kin  in  consequence  of  the  appointment  of  it 
proving  to  be  inoperative. 2  a. 

§  481.  Cases  of  Election  Where  a  Testator  has  Attempted 
to  Dispose  of  His  Property  by  a  Will  Which  is  Ineffectual 
for  That  Purpose. — The  cases  falling  under  this  head  would 
arise  where  a  testator  had  devised  lands  to  a  stranger,  and 
had  given  a  legacy  to  his  own  heir,  but  by  reason  either  of 
the  testator's  personal  incapacity,  or  of  the  imperfect  exe- 

§  480,  1  Church  v.  Kemble,  5  Sim.  525. 

§  480,  2  Blaikloek  v.  Grindle,  L.  R.  7  Eq.  215;  Rich  v.  Cockell,  9  Ves. 
369. 


§  480,  (a)  In  Albert  v.  Albert,  68 
Md.  352,  12  Atl.  11,  A.  had  a  power 
of  appointment  over  the  estate  of  his 
father,  J.,  conferred  upon  him  by  J.'s 
will.  In  his  own  will,  A.  mingled 
his  own  and  his  father's  estate,  and 
created  certain  trusts  which,  as  to 
the  property  comprised  in  the  J.  es- 
tate, were  void  on  account  of  per- 
petuities. Held,  that  those  benefi- 
ciaries as  to  whose  shares  the  trusts 
were  in  part  void  would  be  required 
to  elect  whether  to  take,  under  the 
will  of  J.,  their  proportion  of  the 
property  of  the  J.  estate,  and  relin- 
quish all  claim  to  participate  in  the 
estate  of  A.,  or  to  abide  by  the  will 
of  A.  in  its  entirety.  They  could 
not  claim  both  against  and  under  the 
will.  In  In  re  Bradshaw,  [1902]  I 
Gh.  436,  W.  B.  by  his  will  gave  prop- 
erty upon  trust  for  the  children  of 
A.  B.  as  A.  B.  should  by  will  ap- 
point, and  in  default  of  appointment 
for  the  children  equally.  A.  B.  cove- 
nanted with  the  trustees  of  his  mar- 


riage settlement  to  exercise  the 
powers  in  a  particular  way.  A.  B. 
by  his  will  made  an  appointment  to 
his  son  for  life  with  an  appointment 
over  which  was  void  as  transgressing 
the  rule  against  perpetuities,  and  he 
also  made  a  bequest  of  property  of 
his  own  in  favor  of  the  son.  The 
covenant  was  not  satisfied  by  the 
terms  of  the  will.  Held,  that  A.  B.'s 
son  must  elect  between  the  interest 
bequeathed  to  him  in  the  property  of 
A.  B.  and  his  interest  in  default  of 
appointment  under  the  will  of  A.  B. 
Held,  also,  that  the  covenant  was 
void.  In  In  re  Oliver's  Settlement, 
Evered  v.  Leigh,  [1905]  1  Ch.  191, 
Farwell,  J.,  refused  to  follow  In  re 
Bradshaw,  inasmuch  as  election 
would  aid  a  disposition  which  was 
illegal,  as  a  violation  of  the  rule 
against  perpetuities;  and  the  same 
holding  was  made  by  Warrington,  J., 
in  In  re  Beale's  Settlement,  Barrett 
V.  Beales,  [1905]  1  Ch.  256. 


§  482  EQUITY    JURISPRUDENCE.  910 

cution  of  the  will,  or  of  some  special  legal  rule,  the  devise  to 
the  stranger  is  void,  so  that  the  land  included  in  it  would 
descend,  while  the  gift  to  the  heir  is  valid.  The  question 
would  then  be  presented,  whether  the  heir  may  take  both 
the  land  descending  to  him  on  account  of  the  devise  being 
void  and  the  legacy,  or  whether  he  must  elect  between  the 
two,  on  the  ground  that  if  he  accepts  the  benefits  given  him, 
he  must  confirm  the  will  entirely.  The  various  circum- 
stances which  have  given  rise  to  cases  of  this  sort  are  the 
following:  The  testator's  personal  incapacity,  through  in- 
fancy or  coverture;  the  imperfect  execution  of  the  will,  as 
one  of  lands ;  a  will  leaving  some  lands  entirely  undisposed 
of  to  descend  to  the  heir,  while  it  gives  other  benefits  to  the 
heir;  a  will  executed  in  one  country  or  state,  and  effectual 
to  carry  all  the  testator's  property  therein,  but  which  does 
not,  on  account  of  its  not  using  appropriate  language,  carry 
his  property  situated  in  another  country  or  state;  and  a  will 
which  does  not  carry  after-acquired  lands.  These  cases 
will  be  separately  examined  in  the  order  thus  given.  It  is 
important  to  be  remembered,  however,  in  this  connection, 
that  modern  legislation  has  removed  most  of  the  occasions 
upon  which  these  cases  can  arise,  and  such  questions  will 
hereafter  be  infrequent.  Thus  in  very  many  of  the  states, 
statutes  have  conferred  upon  infants  and  married  women 
the  same  capacity  to  make  wills  of  real  and  of  personal  es- 
tate, and  have  prescribed  exactly  the  same  mode  of  exe- 
cuting wills  of  real  and  of  personal  property,  and  have 
abolished  the  common-law  rule  which  excluded  after- 
acquired  lands  from  the  operation  of  a  devise.  This  legis- 
lation has  made  it  impossible  for  most  of  the  cases  above 
mentioned  to  arise  in  the  states  where  it  exists. 

§  482.  Infancy  and  Coverture  of  a  Testator. — The  rule 
applicable  under  these  circumstances  depends  upon  the  doc- 
trine that,  in  order  to  create  the  necessity  of  election,  there 
must  be  a  disposition  made  or  intended  to  be  made  by  the 
donor  by  means  of  a  valid  instrument.  As  a  universal 
proposition,  an  heir  cannot  be  put  to  an  election  by  the  will 


911  CONCERNING   ELECTION.  §  482 

of  his  ancestor,  "unless  there  is  a  disposition  by  a  valid  will ; 
and  it  does  not  arise  if  the  testator  is  incapacitated  by  in- 
fancy or  coverture,  or  if  he  attempts  to  dispose  of  property 
by  a  will  not  duly  executed. ^  No  case  of  election  will  be 
raised  where  there  is  a  want  of  capacity  to  devise  real  estate 
by  reason  of  infancy.  Prior  to  modern  statutes,  therefore, 
where  an  infant,  whose  will  was  valid  as  to  personalty,  but 
invalid  as  to  the  realty,  devised  his  real  estate  to  a  stranger, 
and  gave  a  legacy  to  his  heir  at  law,  the  heir  at  law  was 
not  obliged  to  elect  between  this  legacy  and  the  lands  which 
descended  to  him  through  the  invalidity  of  the  devise;  he 
could  take  both. 2  On  the  same  ground,  a  case  of  election 
did  not  arise  from  the  incapacity  of  the  testator  by  reason 
of  coverture.  Under  the  old  law,  the  only  will  which  it 
was  possible  for  a  married  woman  to  make  was  one  executed 
by  way  of  appointment  under  a  power  bestowed  upon  her. 
Where,  therefore,  a  married  woman,  acting  under  a  power, 
made  a  valid  appointment  by  will  to  her  husband,  and  also 
in  the  same  will  bequeathed  to  a  stranger  certain  personal 
property,  over  which  the  power  did  not  extend,  the  husband 
was  not  put  to  an  election,  but  could  retain  the  fund  ap- 
pointed to  him,  and  also  claim  the  personal  property  which 
his  wife  had  attempted  to  bequeath,  and  to  which  he  was 
entitled  by  virtue  of  his  right  of  succession  as  husband.^ 
Neither  of  these  cases  could  readily  occur  at  present,  since 
an  infant  has  the  same  power  by  statute  in  most  states  to 
make  a  will  of  real  and  of  personal  estate,  and  a  married 

§  482,  1  Thellusson  v.  Woodford,  13  Ves.  223 ;  Gardiner  v.  Fell,  1  Jacob 
&  W.  22. 

§  482,  2  Hearle  v.  Greenbank,  3  Atk.  695,  715,  1  Ves.  Sr.  298 ;  Brodie 
V.  Barry,  2  Ves.  &  B.  127 ;  Sheddon  v.  Goodrich,  8  Ves.  481 ;  Snelgrove  v. 
Snelgrove,  4  Desaus.  Eq.  274;  Melchor  v.  Burger,  1  Dev.  &  B.  Eq.  634; 
Kearney  v.  Macomb,  16  N.  J.  Eq.  189;  Tongue  v.  Nutwell,  17  Md.  212, 
229,  79  Am.  Dec.  649 ;  Jones  v.  Jones,  8  Gill,  197. 

§  482,  3  Rich  V.  Cockell,  9  Ves.  369 ;  Blaiklock  v.  Grindle,  L.  R.  7  Eq. 
215  i  and  see  the  American  cases  cited  in  the  last  preceding  note. 


§  483  EQUITY   JURISPRUDENCE.  912 

woman  is  generally  empowered  to  make  a  will  of  all  her 
own  property,  real  or  personal.* 

§  483.  Will  Valid  as  to  Personal  Estate,  but  Invalid  as  to 
Lands. — The  cases  now  to  be  considered  are  those  in  which 
the  testator  had  full  capacity  to  dispose  of  all  his  property, 
but  by  reason  of  his  not  complying  with  some  rule  of  the 
law  as  to  mode  of  execution  or  form  of  description,  the  will 
proved  to  be  inoperative  with  respect  to  certain  kinds  of  his 
property,  which  property  therefore  descended  to  his  heir 
or  devolved  upon  his  successors,  as  in  the  absence  of  any 
will.  Prior  to  statutes  comparatively  modern,  a  will  of 
freehold  estates  in  land  required  certain  formalities  in  its 
execution,  which  were  not  necessary  to  the  validity  of  a  will 
of  personal  property.  Under  that  condition  of  the  law,  it 
was  a  well-settled  rule  that  where  a  testator,  by  a  will  not 
executed  with  the  formalities  requisite  to  pass  freehold 
estates  in  land,  purported  to  devise  such  freehold  estates 
away  from  his  heir  to  a  stranger,  and  by  the  same  will  gave 
a  legacy  to  his  heir,  the  heir  was  not  obliged  to  elect,  but 
could  take  both  the  legacy  and  the  lands  which  descended 
to  him,  notwithstanding  the  attempted  devise.  In  other 
words,  the  law  would  not,  in  the  absence  of  any  express  con- 
dition inserted  in  the  will  by  the  testator  himself,  impose 
any  implied  condition  upon  the  heir,  and  thus  compel  him 
to  carry  out  the  supposed  intent  of  the  testator  by  conform- 
ing to  all  the  dispositions  of  the  will.^     This  rule,  however, 

§  483,  1  Sheddon  v.  Goodrich,  8  Ves.  481 ;  Gardiner  v.  Fell,  1  Jacob 
&  W.  22;  Thellusson  v.  Woodford,  13  Ves.  220,  221;  Wilson  v.  Wilson, 
1  De  Gex  &  S.  152;  Kearney  v.  Macomb,  16  N.  J.  Eq.  189;  Tongue  v. 
Nutwell,  17  Md.  212,  219;  79  Am.  Dec.  649;  Jones  v.  Jones,  8  Gill,  197; 
Melehor  v.  Burger,  1  Dev.  &  B.  Eq.  634;  McElfresh  v.  Schley,  1  Gill,  181. 
While  acknowledging  this  rule  to  be  firmly  established,  able  judges  have 
expressed  a  strong  opinion  against  its  soundness  in  principle,  viz. :  Lord 

§  482,    (a)    As   to   election   by   the       Act  of  1882,  see  In  re  Karris  (Lea- 
husband  under  the  will  of  the  wife       croft  v.  Harris),  [1909]  2  Ch.  206. 
since  the  Married  Women's  Property 


913  CONCERNING   ELECTION.  §  484 

does  not  apply  where  the  legacy  is  given  to  the  heir  upon  an 
express  condition  that  if  he  disputes  or  does  not  comply 
with  the  whole  of  the  will,  he  shall  forfeit  all  benefit  under 
it.  In  that  case  the  condition  is  binding  upon  the  heir,  and 
if  he  accepts  the  legacy,  he  cannot  claim  the  descended 
lands.  This  result,  however,  is  not  properly  referable  to 
the  doctrine  of  election;  it  is  merely  a  case  of  a  gift  with  a 
condition  annexed  to  it,  so  that  unless  the  condition  is  ful- 
filled the  gift  is  wholly  inoperative.^  a  The  principal  rule 
stated  above,  at  the  commencement  of  this  paragraph,  has 
become  practically  obsolete  in  the  United  States,  as  well  as 
in  England, 3  since  by  statutes  the  same  modes  of  execution 
have  been  prescribed  for  wills  of  real  and  of  personal 
property. 

§  484.  Will  Invalid  in  Another  Country  or  State. — There 
is  a  second  case  which  may  and  does  arise  in  this  country 
and  in  England,  having  been  affected  by  no  statute.  A 
testator  has  property  situated  in  two  states  or  countries; 
he  makes  a  will,  the  language  of  which,  either  by  general 
or  particular  description,  applies  to  both  classes  of  prop- 
erty, by  which  he  devises  his  lands  away  from  his  heir  to 
a  stranger,  and  at  the  same  time  gives  a  legacy  or  other 
benefit  to  his  heir;  the  will  is  valid  and  operative  by  the 

Eldon,  in  Slieddon  v.  Goodrich,  8  Ves.  481,  496;  Sir  William  Grant,  in 
Brodie  v.  Barry,  2  Ves.  &  B.  127;  and  Lord  Kenyou  in  Gary  v.  Askew, 
1  Cox,  241. 

§  483,  2  It  seems  also  that  the  condition  may  be  shown  from  the  whole 
tenor  and  fonn  of  the  disposition,  provided  it  shows  a  clear  intent  of 
the  testator  that  the  legacy  depends  upon  the  carrying  out  of  his  other 
attempted  gifts:  Boughton  v.  Boughton,  2  Ves.  Sr.  12;  Sheddon  v.  Good- 
rich, 8  Ves.  481,  496,  per  Lord  Eldon;  Melchor  v.  Burger,  1  Dev.  &  B. 
Eq.  634:  Snelgrove  v.  Snelgrove,  4  Desaus.  Eq.  274,  300;  Jones  v.  Jones, 
8  Gill,  197;  Kearney  v.  Macomb,  16  N.  J.  Eq.  189;  McElfresh  v.  Schley, 
1  Gill,  181;  Nutt  v.  Nutt,  1  Freem.  Ch.  128. 

§  483,  3  Lord  Langdale's  Act,  concerning  wills,  1  Vict.,  c.  26. 

§  483,  (a)  The  text  is  cited  to  this  557,  563,  64  Am.  St.  Rep.  745,  27 
effect  in  Fifield  v.  Van  Wyek,  94  Va.       S.  E.  446. 

1—58 


§  484  EQUITY    JURISPRUDENCE.  914 

law  of  tlie  state  or  country  in  whicli  it  is  made,  so  (hat  all 
the  testator's  property  situated  therein  is  effectively  dis- 
posed of;  but,  either  from  the  neglect  of  proper  modes  of 
execution,  or  of  the  requisite  form  of  description  or  dis- 
position, the  will  is  not  valid  and  operative  by  the  law  of 
the  other  state  or  country  to  carry  the  lands  of  the  testator 
situated  therein ;  the  attempted  devise  of  the  lands  situated 
in  that  other  country  or  state  is  therefore  void,  and  the 
lands  themselves  descend  to  the  heir  at  law.  The  question 
presented  upon  these  facts  is,  whether  the  heir  is  bound  to 
elect  between  the  gift  contained  in  the  will  and  the  de- 
scended lands,  or  whether  he  may  retain  both.  It  will  be 
seen  from  the  numerous  decisions — English  and  American 
— that  the  answer  to  this  question  is  made  to  depend  upon 
a  second,  namely,  whether  the  testator,  by  the  language  of 
description  and  disposition  being  sufficiently  specific  as  ap- 
plied to  the  foreign  lands,  has  shown  a  clear  intent  to  in- 
clude those  lands  in  his  devise  to  the  stranger;  or,  from  his 
using  more  general  language  in  describing  the  subject- 
matter  dealt  with,  the  testator  has  shown  an  intent,  accord- 
ing to  the  settled  rules  of  interpretation,  to  confine  the  oper- 
ation of  his  will  to  the  property  situated  in  the  first  state 
or  country  where  the  will  was  made,  and  which  property 
he  had  the  power  to  dispose  of  by  means  of  that  will.  This 
is  one  of  the  cases  to  which  the  general  rule  of  interpreta- 
tion laid  down  in  section  473  is  constantly  applied  by  the 
courts.  The  cases  in  England  have  generally  arisen  upon 
wills  made  in  England,  and  valid  with  respect  to  the  tes- 
tator's property  situated  there,  but  invalid  according  to  the 
peculiar  law  of  Scotland,  so  that  they  were  inoperative  to 
carry  the  testator's  heritable  property,  or  landed  estates, 
lying  in  that  country.  The  English  courts  have  settled  the 
two  following  conclusions :  If  the  language  by  which  the 
testator  describes  and  disposes  of  his  property  is  general 
in  its  terms,  and  makes  no  specific  reference  to  his  Scotch 
heritable  property,  and  contains  no  words  or  phrases  which, 
by  a  reasonable  interpretation,  necessarily  refer  to  such 


915  CONCERNING   ELECTION.  §  484 

property,  then  the  general  rule  of  construction  governs  the 
case,  that  the  testator  must  be  assumed  to  have  intended 
to  confine  the  dispositions  to  the  property  which  he  had 
the  power  to  dispose  of  by  that  will, — namely,  the  English 
property.  The  Scotch  heritable  property  is  not  disposed 
of,  and  was  not  intended  to  be  disposed  of,  and  the  heir  is 
not  put  to  an  election.  In  short,  the  case  falls  under  the 
familiar  rule  stated  in  the  last  paragraph. ^  If,  on  the  other 
hand,  the  testator  makes  an  express  reference  to  his  Scotch 
property,  or  uses  such  specific  language  of  description,  that, 
upon  a  reasonable  interpretation,  he  must  have  intended 
such  a  reference,  and  a  clear  intention  is  thereby  shown 
to  dispose  of  the  Scotch  as  well  as  the  English  estate,  then, 
although  the  disposition  is  void  with  respect  to  the  Scotch 
heritable  property,  the  heir  at  law  is  compelled  to  elect  be- 
tween this  property  thus  descending  to  him,  and  the  benefits 
conferred  upon  him  by  the  will.2     Similar  cases  have  arisen 

§484,  1  Maxwell  v.  Maxwell,  2  De  Gex,  M.  &  G.  705;  16  Beav.  106 ;_ 
Johnson  v.  Telford,  1  Russ.  &  M.  244;  Allen  v.  Anderson,  5  Hare,  163; 
Maxwell  v.  Hyslop,  L.  R.  4  Eq.  407;  Lamb  v.  Lamb,  5  Week.  Rep.  720. 
In  Maxwell  v.  Maxwell,  2  De  Gex,  M.  &  G.  705,  the  language  of  descrip- 
tion and  gift  was,  "all  my  real  and  personal  estate,  whatsoever  and 
wheresoever."  See  extract  from  opinion,  ante,  §  474,  note.  In  Johnson 
V.  Telford,  1  Russ.  &  M.  244,  the  testator  "gave,  devised,  and  bequeathed 
all  and  every  his  real  and  personal  estate  whatsoever  and  wheresoever, 
which  he  was  or  should  be  seised  or  possessed  of  or  entitled  to."  In 
Allen  V.  Anderson,  5  Hare,  163,  the  testator  devised  "all  the  rest  and 
residue  of  his  real,  personal,  and  mixed  estates,  whatsoever  and  whereso- 
ever," etc.  Held,  this  did  not  apply  to  a  Scotch  "heritable  bond,"  which, 
by  Scotch  law,  descended  to  the  heir  at  law,  and  the  heir  was  not  bound 
to  elect  between  the  bond  and  the  benefits  under  the  will.  In  Maxwell 
V.  Hyslop,  L.  R.  4  Eq.  407,  the  testator  gave  "all  the  residue  of  his  real 
and  personal  estate,"  and  this  was  held  not  to  apply  to  a  Scotch  estate 
which  descended  to  the  heir. 

§  484,  2  Brodie  v.  Bari-y,  2  Ves.  &  B.  127;  Orrell  v.  Orrell,  L.  R.  6  Ch. 
302;  Dewar  v.  Maitland,  L.  R.  2  Eq.  834;  McCall  v.  McCall,  Dru.  283, 
per  Lord  Chancellor  Sugden.  In  Brodie  v.  Bari-y,  2  Ves.  &  B.  127,  the 
language  of  the  devise  was,  "all  my  estate,  freehold,  leasehold,  copyhold, 
and  other  estates  whatever,  and  wheresoever  situated,  in  England,  Scot- 
land, and  elsewhere,"  and  Sir  William  Graxit  held  that  the  intent  was  un- 


§  484  EQUITY    JURISPRUDENCE.  916 

ill  this  country  upon  wills  executed  in  one  state,  and  valid 
for  all  purjDOses  by  the  law  thereof,  but  not  valid  as  effect- 
ive devises  of  land  by  the  law  of  another  state  in  which  was 
situate  real  property  owned  by  the  testator.  The  same  two- 
fold rule  has  been  adopted  and  enforced  by  the  American 
courts ;  and  it  is  plain  that  such  cases  may  constantly  arise 
from  the  varying  legislation  of  different  commonwealths.^ 

mistakable  to  dispose  of  the  Scotch  estates  as  well  as  the  English,  and 
tlierefore  it  was  a  case  for  an  election.  In  Orrell  v.  Orrell,  L.  R.  6  Ch. 
302,  the  language  was,  "all  the  residue  of  my  real  estate,  situate  in  any 
part  of  the  United  Kingdom  or  elsewhere."  The  testator  left  estates  in 
England  and  Scotland,  but  none  in  Ireland  or  Wales.  The  court  of  a,p- 
peal  held  that  the  intention  to  dispose  of  the  Scotch  property  was  suffi- 
'  ciently  clear  to  require  an  election.  This  case  unquestionably  lies  very 
near  if  not  on  the  line  which  separates  the  two  classes.  See  ante,  §  474, 
note,  where  it  is  given  more  at  large.  In  Dewar  v.  Maitland,  L.  R.  2  Eq. 
834,  the  will,  in  express  terms,  devised  estates  in  England  and  in  the 
colony  of  St.  Kitts,  but  being  attested  by  only  two  witnesses,  it  was  not 
effectual  to  pass  the  land  in  St.  Kitts  by  the  colonial  law.  The  rule  was 
Applied  requiring  the  heir  to  elect  between  the  lands  thus  descending  to 
him,  and  the  gifts  made  to  him  by  the  will.** 

§  484,  3  Jones  v.  Jones,  8  Gill,  197 ;  Kearney  v.  Macomb,  16  N.  J.  Eq. 
189 ;  Van  Dyke's  Appeal,  60  Pa.  St.  481,  489.  In  Jones  v.  Jones,  8  Gill, 
197,  the  will  was  made  in  Pennsylvania,  and  was  valid  there;  but  was  not' 
valid  as  a  will  of  land  in  Maryland,  because  it  was  not  executed  in  the 
presence  of  three  witnesses.  The  court  held  that  the  heir  was  not  bound 
to  elect,  but  could  claim  the  Maryland  land  inherited  by  him,  and  retain 
the  legacy  given  by  the  will.  In  Van  Dyke's  Appeal,  60  Pa,  St.  481,  489, 
the  opinion  of  Mr.  Justice  Sharswood  is  such  an  able  and  exhaustive 
discussion  of  the  doctrine  as  applied  under  these  and  analogous  cir- 
cumstances that  I  shall  quote  fi-om  it  at  some  length.  The  testator  gave 
legacies  to  his  daughters  which  exhausted  nearly  all  of  his  property  in 
Pennsylvania,  and  gave  his  real  estate  in  New  Jersey  to  his  sons.  The 
will  was  valid  in  Pennsylvania,  but  not  executed  so  as  to  be  an  effective 
will  of  lands  in  New  Jersey.  The  daughters,  therefore,  unless  compelled 
to  elect,  would  receive  all  the  Pennsylvania  property  as  legatees,  and  their 
proportionate  shares  of  the  New  Jersey  estate  as  heirs.  The  sons  brought 
a  suit  in  equity  to  compel  an  election,  and  a  conveyance  of  the  estate  in 
conformity  with  the  will.  Sharswood,  J.,  after  holding  that  the  case  was 
])lainly  one  of  equitable  cognizance,   falling  within   the  equitable  juris- 

§  484,  (a)  See  In  re  De  Virte-Vaiani  v.  de  Virte,  [1915]  1  Ch.  &20. 


917  CONCERNING   ELECTION.  §  485 

§  485.  Will  Devising  After-acquired  Lands. — Still  an- 
other case  frequently  arose  under  the  former  condition  of 
the  law,  but  which  has  become  obsolete  from  the  effect  of 
modern  legislation  upon  the  construction  and  operation  of 
wills,  namely,  that  of  after-acquired  lands  purporting  to  be 
devised  by  the  testator,  but  in  reality  descending  to  the 
heir.    Previous  to  the  modern  statutes  on  the  subject,  a  will 

diction  over  trusts,  said:  "It  may  certainly  be  considered  as  settled  in 
England  that  if  a  will  pui-porting  to  devise  real  estate,  but  ineffectually, 
because  not  attested  according  to  the  statute  of  frauds,  gives  a  legacy  to 
the  heir  at  law,  he  cannot  be  put  to  his  election :  Hearle  v.  Greenbank, 
3  Atk.  695;  Thellusson  v.  Woodford,  13  "Ves.  209;  Buckeridge  v.  Ingram, 
2  Ves.  652;  Sheddon  v.  Goodrich,  8  Ves.  482.  These  cases  have  been 
recognized  and  followed  in  this  countiy :  Melchor  v.  Burger,  1  Dev.  &  B. 
Eq.  634;  McElfresh  v.  Schley,  2  Gill,  181;  Jones  v.  Jones,  8  Gill,  197; 
Kearney  v.  Macomb,  16  N.  J.  Eq.  189.  Yet  it  is  equally  well  established 
that  if  the  testator  annexed  an  express  condition  to  the  bequest  of  the 
personalty,  the  duty  of  election  will  be  enforced:  Boughton  v.  Boughton, 
2  Ves.  Sr.  12;  Whistler  v.  Webster,  2  Ves.  367;  Ker  v.  Wauchop,  1  Bligh, 
1;  McElfresh  v.  Schley,  2  Gill,  181.  That  this  distinction  rests  upon  no 
sufficient  reason  has  been  admitted  by  almost  every  judge  before  whom 
the  question  has  arisen.  Why  an  express  condition  should  jjrevail,  and 
one,  however  clearly  implied,  should  not,  has  never  been  and  cannot  be 
satisfactorily  explained.  It  is  said  that  a  disposition  absolutely  void  is 
no  disposition  at  all,  and  being  incapable  of  effect  as  such,  it  cannot  be 
read  to  ascertain  the  intent  of  the  testator.  But  an  express  condition 
annexed  to  the  bequest  of  the  personalty  does  not  render  the  disposition 
of  the  realty  valid;  it  would  be  a  repeal  of  the  statute  of  frauds  so  to 
hold.  How,  then,  can  it  operate  any  more  than  an  implied  condition  to 
open  the  eyes  of  the  court,  so  as  to  enable  them  to  read  those  parts  of 
the  will  which  relate  to  the  realty?  and  without  a  knowledge  of  what  they 
are,  how  can  the  condition  be  enforced'?"  He  then  quotes  the  language  of 
several  eminent  judges,  in  which  they  express  a  strong  dissent  from  the 
soundness  of  this  distinction,  in  accordance  with  his  own  views,  although 
admitting  that  it  had  become  settled,  viz.,  of  Lord  Kenyon,  M.  R.,  in  Gary 
V.  Askew,  1  Cox,  241 ;  and  of  Sir  William  Grant,  in  Brodie  v.  Barry,  2 
Ves.  &  B,  127;  and  of  Lord  Eldon,  in  Ker  v.  Wauchop,  1  Bligh,  1,  and 
Sheddon  v.  Goodrich,  8  Ves.  482;  and  then  proceeds:  "Mr.  Justice  Ken- 
nedy has  expressed  the  same  opinion :  'When  a  condition  is  necessarily 
implied  by  a  construction  in  regard  to  which  there  can  be  but  one  opinion, 
there  can  be  no  good  reason  why  the  result  or  decision  of  the  court  should 
not  be  the  same  as  in  the  case  of  an  express  condition,   and  the  donee 


§  485  EQUITY    JURISPRUDENCE.  918 

of  real  estate  invariably  spoke  from  -tlie  date  of  its  excfii- 
tion,  and  not  from  the  testator's  death.  A  testator  conld 
not,  by  any  form  of  words,  however  explicit  and  mandatory, 

bound  to  make  an  election  in  one  case  as  well  as  in  the  other' :  Phila- 
delphia V.  Davis,  1  Whart.  510.  There  is  another  class  of  cases  in  Eng- 
land wholly  irreconcilable  with  this  shadowy  distinction ;  for  the  hcii-  at 
law  of  a  copyhold  was  formerly  put  to  his  election,  though  there  had 
been  no  surrender  to  the  use  of  the  will.  This  was  previous  to  55  Geo. 
III.,  c.  192;  1  Lead.  Cas.  Eq.  239,  note;  yet,  as  Sir  William  Grant  has 
remarked,  'a  will,  however  executed,  was  as  inoperative  for  the  convey- 
ance of  freehold  estates' :  Brodie  v.  BaiTy,  2  Ves.  &  B.  130.  The  precise 
point  can  never  arise  in  this  state,  for,  happily,  our  statute  of  wills  wisely 
provides  that  the  forms  and  solemnities  of  execution  and  proof  shall  be 
the  same  in  all  wills,  whether  of  realty  or  personalty.  The  ease  before 
us  is  of  a  will  duly  executed  according  to  the  laws  of  Pennsylvania,  de- 
vising lands  in  New  Jersey,  where,  however,  it  is  invalid  as  to  the  realty, 
by  not  having  three  subscribing  witnesses.  A  court  of  New  Jersey  might 
hold  themselves,  on  these  authorities,  bound  to  shut  their  eyes  on  the  devise 
of  the  realty,  and  consider  it  as  though  it  were  not  written,  and  so  they 
have  held :  Kearney  v.  Macomb,  16  N.  J.  Eq.  189.  They  might  feel  them- 
selves compelled  to  say,  with  Lord  Alvanley,  however  absurdly  it  sounds: 
*I  cannot  read  the  will  without  the  word  "real"  in  it ;  but  I  can  say,  for 
the  statute  enables  me,  and  I  am  bound  to  say,  that  if  a  man,  by  a  will 
unattested,  gives  both  real  and  personal  estate,  he  never  meant  to  give  the 
real  estate':  Buckeridge  v.  Ingram,  2  Ves.  652.  But  a  statute  of  New 
Jersey  has  no  such  moral  power  over  the  conscience  of  a  court  of  Penn- 
sylvania, to  prevent  it  from  reading  the  whole  will  upon  the  construction 
of  a  bequest  of  personalty  within  its  rightful  jurisdiction.  We  are  deal- 
ing only  with  the  bequests  of  personalty,  and  the  simple  question  is, 
whether  the  testator  intended  to  annex  to  them  a  condition.  If  without 
making  any  disposition  whatever  of  the  New  Jersey  estates,  dying  intes- 
tate as  to  them,  he  had  annexed  an  express  proviso  to  the  legacies  to  his 
daughters,  that  they  should  release  to  their  brothers  all  their  right  and 
title  as  heirs  at  law  to  these  lands,  it  is,  of  course,  indubitable  that  such 
a  condition  would  have  been  effectual.  We  are  precluded  by  no  statute 
to  which  we  owe  obedience  from  reading  the  whole  will,  and  if  we  see 
plainly  that  such  was  the  intention  of  the  testator,  from  carrying  it  into 
effect."  The  learned  judge  then  cites  and  quotes  from  the  facts  and 
opinions  in  the  English  eases  upon  wills  of  estates  situate  in  Scotland, 
which  are  referred  to  in  the  preceding  note,  viz. :  Brodie  v.  Barry,  2  Ves. 
&  B.  127;  Maxwell  v.  Maxwell,  2  De  Gex,  M.  &  G.  705,  and  McCall  v. 
McCall,  Dru.  283,  per  Lord  Chancellor  Sugden;  and  proceeds:  "In  this 
state  of  the  authorities  we  are  clear  in  holding  that  we  are  not  precluded 


919  CONCERNING   ELECTION.  §  485 

devise  any  lands  of  which  he  should  become  seised,  or  which 
he  should  purchase  or  acquire  in  any  other  manner,  after 
the  execution  of  the  will ;  the  devise  was  wholly  void,  and  the 

by  force  of  the  New  Jersey  statute  from  reading  the  whole  will  of  the 
testator,  in  order  to  ascertain  his  intention  in  reference  to  his  bequest 
of  the  personalty  now  in  question.  We  are  equally  clear  that  it  is  a  case 
for  election.  The  intention  of  the  testator  does  not  rest  merely  upon  the 
implication  arising  from  his  careful  division  of  his  property  among  his 
children  in  different  classes,  but  he  has  indicated  it  in  words  by  the  clause, 
*I  direct  and  enjoin  on  my  heirs  that  no  exception  be  taken  to  this  will, 
or  any  part  thereof,  on  any  legal  or  technical  account.'  It  is  true  that 
for  want  of  a  bequest  over,  this  provision  would  be  regarded  as  in  ter- 
rorem  only,  and  would  not  induce  a  forfeiture :  Chew's  Appeal,  45  Pa. 
St.  228.  But,  as  has  been  often  said,  the  equitable  doctrine  of  election 
is  grounded  upon  the  ascertained  intention  of  the  testator,  and  we  can 
resort  to  every  part  of  the  will  to  arrive  at  it.  'The  intention  of  the 
donor  or  testator  ought  doubtless  to  be  the  pole-star  in  such  cases;  and 
wherever  it  appears  from  the  instrument  itself  confeiTing  the  benefit, 
with  a  certainty  that  will  admit  of  no  doubt,  either  by  express  declaration 
or  by  words  that  are  susceptible  of  no  other  meaning,  that  it  was  the 
intention  of  the  donor  or  testator  that  the  object  of  his  bounty  should  not 
participate  in  it  without  giving  his  assent  to  everything  contained  in  the 
instrument,  the  donees  ought  not  to  be  permitted  to  claim  the  gift,  unless 
they  will  abide  by  the  intention  and  wishes  of  its  author' :  Philadelphia 
V.  Davis,  1  Wliart.  510,  per  Kennedy,  J.  This,  however,  is  not  the  only 
mode  in  which  the  equity  of  the  case  can  be  reached.  The  doctrine  of 
equitable  election  rests  upon  the  principle  of  compensation,  and  not  of 
forfeiture,  which  applies  only  to  the  non-performance  of  an  express  con- 
dition. Besides,  no  decree  of  this  court  colild  authorize  the  guardians  of 
the  minors  to  execute  releases  of  their  right  and  title  to  the  New  Jersey 
lands,  which  would  be  effectual  in  that  state.  The  alternative  relief 
prayed  for  in  the  bill  is  that  which  is  most  appropriate  to  the  case."  It 
was  decreed  that  the  sons — devisees — should  receive  out  of  the  personal 
property  bequeathed  to  the  defendants — daughters — sums  equal  in  value 
to  the  shares  of  the  real  property  in  New  Jersey,  which  descended  to  the 
daughters,  but  which  would  have  vested  in  the  sons,  if  the  will  had  been 
operative  on  such  lands.  This  admirable  judgment  of  Mr.  Justice  Shars- 
wood  is  in  perfect  harmony  with  the  decision  of  the  English  court  in 
Brodie  v.  Barry,  2  Ves.  &  B.  127,  Orrell  v.  Orrell,  L.  R.  6  Ch.  302.  and 
cases  of  that  kind,  since  the  devise  of  the  New  Jersey  lands  was  made  in 
express,  specific  terms  of  description  and  gift,  and  was  not  merely  in- 
ferred from  such  general  words  as  "all  my  real  estate,  whatever  and 
wheresoever,"  and  the  like. 


§  485  EQUITY    JURISPRUDENCE.  920 

land  descended  to  his  heir.  A  question  as  to  election  by 
the  heir  was  therefore  presented  by  such  a  will,  and  exactly 
the  same  twofold  rule  was  established  by  the  decisions  as 
in  the  case  of  a  will  purporting  to  devise  estates  situate  in 
another  country,  but  inoperative  for  that  purpose.  If  the 
testator  showed,  by  the  language  of  description  and  gift,  a 
clear  intention  to  dispose  of  his  after-acquired  lands  to  a 
stranger,  and  by  the  same  will  gave  some  benefit  to  his  heir, 
then  the  heir  was  obliged  to  elect  between  these  after- 
acquired  estates  which  would  descend  to  him  and  the  benefits 
conferred  by  the  will;  and  this  rule  applied  both  to  lands 
actually  purchased  after  the  date  of  the  will  and  to  those 
contracted  to  be  purchased.  ^  The  converse  of  the  rule  was 
also  well  settled.  If  the  words  of  description  and  gift  were 
general,  and  not  clearly  pointing  to  after-acquired  land,  so 
that  the  testator's  intention  to  dispose  of  such  estates  was 
not  certain,  was  equivocal,  there  was  no  case  for  an  elec- 
tion.2  The  same  double  rule  has  been  adopted  and  enforced, 
under  like  circumstances,  by  the  American  courts.^  These 
questions  cannot  hereafter  arise;  for  the  rule  itself  has 
been  rendered  obsolete  by  the  English  statute,^  and  by  legis- 

§  485,  1  Chureliman  v.  Ireland,  1  Russ.  &  M.  250 ;  4  Sim.  520 ;  Abdy  v. 
Gordon,  3  Russ..  278;  Schroder  v.  Schroder,  Kay,  571,  578;  18  Jur.  987; 
24  L.  J.  Ch.,  N.  S.,  510,  513;  Hanee  v.  Truwhitt,  2  Johns.  &  H.  216; 
Greenwood  v.  Penny,  12  Beav.  403 ;  Thellusson  v.  Woodford,  13  Ves.  209,. 
211 ;  sub  nom.  Rendlesham  v.  Woodford,  1  Dow.  249. 

§485,  2  Johnson  v.  Telford,  1  Russ.  &  M.  244;  Back  v.  Kett,  Jacob, 
534;  and  see  Plowden  v.  Hyde,  2  De  Gex,  M.  &  G.  684,  687. 

§  485,  3  It  must  be  conceded,  however,  that  there  is  some  conflict  of 
opinion  in  the  reasoning  and  conclusions  of  the  few  American  decisions 
which  have  dealt  with  this  question.  The  English  rule  was  adopted,  and 
the  necessity  of  an  election  was  distinctly  affirmed,  where  the  intent  to 
dispose  of  after-acquired  lands  is  clear,  in  McElfresh  v.  Schley,  2  Gill, 
181;  but  see,  for  contraiy  reasoning  and  dicta,  Philadelphia  v.  Davis,  1 
Whart.  490.  It  is  abundantly  settled  that  there  is  no  case  for  an  elec- 
tion, if  the  intent  to  devise  the  after-acquired  lands  is  not  clear:  Phila- 
delphia V.  Davis,  1  Whart.  490,  503;  Hall  v.  HaU,  2  McCord  Eq.  269, 
299,  306. 

§  485,  4  1  Vict.,  c.  26,  sec.  24. 


921  CONCERNING   ELECTION.  §  486 

lation  of  the  American  states,  which  have  altered  the  com- 
mon-law doctrine,  and  have  enacted  that  wills  of  real  estate 
as  well  as  of  personal  property  shall  speak  from  the  time 
of  the  testator's  death,  and  shall  therefore  carry  after- 
acquired  lands. 

§  486.  Will  of  Copyholds. — Finally,  a  peculiar  case  arose 
in  the  English  law,  growing  out  of  the  species  of  estate  and 
tenure  known  as  copyhold,  which  should  be  briefly  men- 
tioned. Previously  to  the  act  55  Geo.  III.,  c.  192,^  devised 
copyholds  could  only  pass  where  they  had  been  previously 
surrendered  to  the  use  of  the  owner's  will.  Whenever, 
therefore,  a  testator  purported  to  devise  unsurrendered 
copyhold  property,  it  descended  for  want  of  a  surrender 
to  the  heir,  and  a  question  arose  whether  such  heir  could 
claim  both  a  legacy  under  the  will  and  also  the  copyhold 
property.  It  was  held  in  analogy  with  the  cases  described 
in  the  last  two  paragraphs,  that  if  the  testator  showed  an 
intent  to  dispose  of  the  copyholds  by  his  will,  the  heir  was 
put  to  an  election  ;2  but  if  the  devise  was  merely  general 
in  its  form,  and  thus  did  not  indicate  a  plain  intention  to 
include  the  copyholds,  no  necessity  for  an  election  existed. ^ 
This  matter  has  been  swept  into  oblivion  by  modern  reform- 
atory legislation  in  England,  and  of  course  never  had  any 
existence  in  this  country.* 

§  486,  1  Mr.  Preston's  Act. 

§  486,  2  Highway  v.  Banner,  1  Brown  Ch.  584 ;  Rumbold  v.  Rumbold, 
3  Ves.  65;  Pettiward  v.  Prescott,  7  Ves.  541;  Unott  v.  Wilkes,  Amb.  430; 
2  Eden,  187. 

§486,  3  Judd  V.  Pratt,  13  Ves.  168;  15  Ves.  390. 

§  486,  4  These  cases,  however,  and  especially  the  last  named  (Judd  v. 
Pratt,  13  Ves.  168;  15  Ves.  390)  may  be  instructive  upon  the  more  impor- 
tant question,  How  far  does  general  language  of  description  and  donation 
in  a  will  show  an  intent  on  the  part  of  the  testator  to  deal  with  and  dis- 
pose of  a  subject  over  which  he  has  no  power  of  disposition, — e.  g.,  a 
partial  interest,  wife's  dower,  etc., — and  thus  to  raise  a  case  of  election  ? 
Many  of  the  English  and  American  decisions  cited  in  the  foregoing  para- 
graphs upon  wills  devising  land  in  another  country,  or  after-acquired 
land,  or  copyholds,  are  extremely  important  and  useful  in  questions  of 


§§487,488  EQUITY    JURISPRUDENCE.  922 

§  487.  Second  Class. — Cases  where  property  is  given  to 
B,  in  which  the  donor  has  only  a  partial  interest,  and  a 
partial  interest  in  it  is  held  by  A,  and  by  the  same  instru- 
ment other  property  of  the  donor  is  conferred  upon  A. 
This  class  includes  among  others  the  particular  cases  in 
which  the  donor  has  only  an  undivided  share  in  the  prop- 
erty given ;  where  he  has  only  a  future  interest  in  it,  as,  for 
example,  a  remainder  or  reversion  in  fee;  where  it  is  sub- 
ject to  encumbrances  or  charges  held  by  a  party  who  also 
receives  benefits;  where  a  widow  is  entitled  to  dower,  and 
is  a  devisee  or  legatee  under  her  husband's  will;  and  where 
a  widow  has  an  interest  in  ''community  property,"  and 
receives  benefits  by  her  husband's  will. 

§  488.  General  Doctrine. — The  general  doctrine  which 
governs  this  class  of  cases  has  already  been  stated  and 
illustrated.!  ^  Wliere  the  testator  has  a  partial  interest  in 
the  property  devised  or  bequeathed  by  his  will,  the  neces- 
sity of  an  election  is  always  much  less  apparent  than  where 
he  purports  to  bestow  property  in  which  he  has  no  interest 
whatever.  In  such  cases  it  is  a  settled  rule  that  courts  will 
lean  as  far  as  possible  in  favor  of  an  interpretation  which 
shows  an  intention  of  the  testator  to  give  only  the  interest, 
estate,  or  share  which  he  is  enabled,  by  virtue  of  his  own 
right,  to  deal  with,  or  to  give  the  property  in  its  present 
condition,  subject  to  all  existing  encumbrances  and  charges 
upon  it.  It  requires  a  strong,  unequivocal  expression  or  in- 
dication of  an  intent  on  the  part  of  the  testator  to  bestow 

daily  occurrence  concerning  election  with  respect  to  dower,  undivided 
shares  owned  by  the  testator,  and  all  other  instances  of  a  partial  interest 
disposed  of  by  means  of  general  descriptive  language.  It  is  for  this 
reason  that  I  have  stated  the  rules  in  the  text,  and  the  principles  upon 
which  they  were  rested,  although  the  rules  themselves  have  been  abrogated 
by  modem  legislation. 

§  488,  1  See  ante,  §§  473,  474,  and  note. 

§488,  (a)  The  text,  §§  488^93,  is       Home  for  Aged  People  v.  Keen©  (N. 
cited  in  Pratt  v.  Douglas,  38   N.  J.       J.  Eq.),  101  Atl.  512. 
Eq.    516,    536;    and   in    Job    Haines 


923  CONCERNING   ELECTION.  §  488 

the  entire  property,  and  not  simply  his  own  interest  in  it, 
or  to  bestow  the  property  freed  from  its  encumbrances  and 
charges,  in  order  to  raise  the  necessity  for  an  election. ^  ^ 
The  affirmative  branch  of  the  rule  is  equally  well  settled, 

§  488,  2  Lord  Rancliffe  v.  Lady  Parkyns,  6  Dow,  185 ;  Birmingham  v. 
Kirwan,  2  Schoales  &  L.  444;  Maddison  v.  Chapman,  1  Johns.  &  H.  470; 
Wintour  v.  Clifton,  8  De  Gex,  M.  &  G.  641,  650;  Padbury  v.  Clark,  2 
Macn.  &  G.  298 ;  Dummer  v.  Pitcher,  5  Sim.  35,  2  Mylne  &  K.  262 ;  Shut- 
tleworth  v.  Greaves,  4  Mylne  &  C.  35;  Stephens  v.  Stephens,  1  De  Gex 

6  J.  62;  Wilkinson  v.  Dent,  L.  R.  6  Ch.  339;  Grissell  v.  Swinhoe,  L.  R. 

7  Eq.  291;  Havens  v.  Sackett,  15  N.  Y.  365;  Lewis  v.  Smith,  9  N.  Y.  502, 
61  Am.  Dec.  706 ;  Adsit  v.  Adsit,  2  Johns.  Ch.  448,  7  Am.  Dec.  539 ;  Bull 
V.  Church,  5  Hill,  206;  Fuller  v.  Yates,  8  Paige,  325;  Sandford  v.  Jack- 
son, 10  Paige,  266 ;  Vernon  v.  Vernon,  53  N.  Y.  351 ;  Lef evre  v.  Lef evre, 
59  N.  Y.  435;  Reed  v.  Dickerman,  12  Pick.  146;  Morrison  v.  Bowman, 
29  Cal.  337,  348;  Peck  v.  Brummagim,  31  Cal.  440,  447,  89  Am.  Dec.  195; 
De  Godey  v.  Godey,  39  Cal.  157,  164;  In  re  Buchanan's  Estate,  8  Cal. 
507;  Beard  v.  Knox,  5  Cal.  252,  63  Am.  Dec.  125;  Burton  v.  Lies,  21  Cal. 
91 ;  In  re  Silvey's  Estate,  42  Cal.  211.  In  the  ease  of  Havens  v.  Sackett, 
15  N.  Y.  365,  the  doctrine  is  stated  in  so  admirably  clear  and  accurate  a 
manner  by  Denio,  C.  J.,  that  I  shall  quote  from  his  opinion  at  some 
length.  One  Havens,  the  testator,  being  entitled,  under  the  will  of  a 
deceased  brother,  to  certain  bank  stocks,  in  case  he  should  survive  that 
brother's  widow,  bequeathed,  by  a  codicil  of  his  own  will,  to  the  plaintiff, 
''the  stocks  given  to  me  by  my  said  brother  after  the  decease  of  his 
widow."  The  testator  also,  by  the  same  codicil,  devised  certain  lands 
which  he  confessedly  owned  to  his  children,  the  defendants.  The  will  of 
the  testator's  brother  had  given  those  same  stocks  to  the  testator's  children 
(the  defendants),  in  case  their  father  should  not  survive  the  brother's 
widow.  In  fact,  the  testator  died  before  the  brother's  widow,  so  that  the 
bequest  to  the  plaintiff  of  the  stocks  became  nugatory,  and  they  belonged 
to  the  defendants  under  the  provisions  of  their  uncle's  wiU.  The  plain- 
tiff claimed  that  the  defendants  were  bound  to  elect  between  the  land 
given  them  by  the  Avill  and  the  stocks  which  came  to  them  under  their 
uncle's  will,  but  which  their  father  had  bequeathed  to  the  plaintiff.  The 
court  of  appeals,  reversing  the  judgment  of  the  supreme  court,  held  that 
there  was  no  necessity  for  an  election.     Denio,  C.  J.,  after  stating  the 

§  488,    (b)    The  text  is   quoted  in  v.  Spragins,  80  Ala.  541.     See,  also, 

La   Toiirette  v.  La  Tourette,  15  Ariz.  In  re  Gilmore,  81   Cal.  240,  22  Pac. 

200,  Ann.   Gas.   1915B,   70,  137   Pac.  655;    Sherman    v.    Lewis,    44    Minn. 

426;  cited  to  this  effect  in  Pratt  v.  107,  46  N.  W.  318. 
Douglas,  38  N.  J.  Eq.  516,  536;  Touey 


§  488  EQUITY    JURISPRUDENCE.  924 

that  if  a  testator  is  only  entitled  to  a  partial  interest  in 
the  property,  as  where  he  owns  an  undivided  share,  or  a 
future  estate,  or  holds  the  property  subject  to  some  encum- 
brance or  charge,  and   uses   language  of   description   and 

general  rule  as  follows :  "One  who  accepts  a  benefit  under  a  deed  or  will 
must  adopt  the  whole  contents  of  the  instrument,  conforming  to  all  its 
provisions  and  renouncing  every  right  inconsistent  with  it;  for  example, 
if  a  testator  has  affected  to  dispose  of  property  not  his  own,  and  has 
given  a  benefit  to  the  person  to  whom  that  projDerty  belongs,  the  legatee 
or  devisee  accepting  the  benefit  so  given  to  him  must  make  good  the  tes- 
tator's attempted  disposition," — proceeded  to  apply  the  doctrine :  "If  the 
codicil  can  be  so  read  that  it  shall  appear  that  the  testator  intended  only 
to  dispose  of  his  own  contingent  interest,  or  in  other  words,  to  dispose 
of  the  stock  on  condition  that  it  should  come  to  him  by  his  surviving  his 
sister-in-law,  and  that  he  did  not  attempt  to  do  more,  then  it  cannot  be 
said  that  the  plaintiff  is  disappointed  by  the  defendants  claiming  their 
share  of  the  stock,  and  the  mle  does  not  apply.  Among  the  numerous 
cases  which  I  have  examined,  I  do  not  find  any  which  presents  this  feature. 
It  is  indeed  laid  down  that,  in  order  to  furnish  a  case  for  compelling  an 
election,  it  must  appear  clearly  and  certainly  that  the  interest  attemjjted 
to  be  disposed  of  was  such  as  the  testator  did  not  own.  A  person,  it  is 
said,  is  not,  without  strong  indications  of  such  an  intent,  to  be  understood 
as  dealing  with  that  which  does  not  belong  to  him."  He  cites  Dummer  v. 
Pitcher,  2  Mylne  &  K.  262,  5  Sim.  35,  stating  the  facts  and  decision  of 
the  court,  and  then  proceeds:  "The  numerous  class  of  cases  in  which  a 
provision  has  been  made  for  a  wife  by  wUl,  and  not  expressed  to  be  in 
lieu  of  dower,  and  where  the  real  estate  has  been  devised  to  another  by 
the  same  will,  afford  some  light  upon  this  question.  At  the  first  sight, 
a  devise  of  a  piece  of  land,  or  the  direction  in  a  will  that  a  particular 
parcel  of  real  estate  should  be  sold  to  raise  legacies,  would  seem  to  be 
hostile  to  the  idea  of  a  life  estate  existing  in  another  in  one  third  of  the 
same  land ;  and  therefore,  where  in  such  cases  the  will  makes  a  provision 
for  the  wife,  it  would  appear  to  be  within  the  rule  requiring  her  to  elect, 
though  it  should  not  be  stated  in  terms  that  the  provision  was  in  lieu  of 
dower.  But  the  courts  have  held  that  such  a  devise  or  direction  is  not 
inconsistent  with  or  repugnant  to  the  claim  of  dower,  and  hence  that  the 
husband  is  not  in  such  cases  to  be  understood  to  have  attempted  to  dis- 
pose of  the  dower  estate  of  the  wife.  The  right  of  dower  is  a  title  para- 
mount to  that  of  the  husband,  and  when  he  devises  the  land,  though  with- 
out any  qualifying  words,  an  exception  of  the  wife's  right  to  dower  is 
implied";  citing  Adsit  v.  Adsit,  2  Johns.  Ch.  448,  7  Am.  Dec.  539; 
Church  V.  Bull,  2  Denio,  430,  43  Am.  Dec.  754,  5  Hill,  207. 


925  CONCEENING   ELECTIOIT.  §  488 

donation,  wHch  shows  an  unmistakable  intention  on  his 
part  to  dispose  of  the  entire  property,  or  the  property  free 
from  the  existing  encumbrance  or  charge,  and  if  the  owner 
of  tlie  other  part  or  holder  of  the  encumbrance  or  charge 
also  receives  benefits  under  the  will,  then  a  case  for  an 
election  by  such  beneficiary  is  presented.  The  grounds  of 
the  election  in  such  cases  were  accurately  stated  by  Lord 
Redesdale  in  a  decision  which  has  since  been  regarded  as 
leading:  ''The  general  rule  is,  that  a  person  cannot  accept 
and  reject  the  same  instrument,  and  this  is  the  foundation 
of  the  law  of  election,  on  which  courts  of  equity  have 
grounded  a  variety  of  decisions  in  cases  both  of  deeds  and 
of  wills.  "3  This  being  the  true  criterion,  it  follows  that, 
in  order  to  create  the  necessity  of  an  election  in  such  cases, 
the  dispositions  of  the  will  must  so  clearly  indicate  the  tes- 
tator's intention  to  give  something  more  than  his  own  par- 
tial interest,  that  the  enjoyment  by  the  donee  of  the  benefits 
conferred  upon  him,  without  carrying  out  the  other  pro- 
visions, would  be  an  acceptance  and  a  rejection  at  the  same 
time  of  the  same  instrument.^  ^  I  shall  now  show  the  man- 
ner in  which  these  general  doctrines  have  been  applied  to 
various  particular  conditions  of  fact,  and  the  special  rules 
which  have  been  established  with  reference  thereto. 

§  488,  3  Birmingham  v.  Kirwan,  2  Schoales  &  L.  444,  449.  The  ques- 
tion was,  whether  a  widow  was  put  to  an  election  between  a  bequest  con- 
tained in  her  husband's  will  and  her  dower  estate  in  his  lands  which  had 
been  devised  away.  Lord  Redesdale  held  that  it  is  not  necessary  to  use 
express  words  of  exclusion,  in  order  to  put  the  widow  to  an  election;  but 
that  a  person  cannot  both  accept  and  reject  the  same  instrument,  and  if, 
from  the  whole  will  taken  together,  if  was  the  manifest  intention  that  the 
testamentary  provision  should  be  received  in  lieu  of  dower,  it  would  make 
an  election  necessary.  But  the  language  of  the  will  must  not  be  doubtful 
nor  ambiguous. 

§  488,  4  Parker  v.  Sowerby,  4  De  Gex,  M.  &  G.  321 ;  Padbury  v.  Clark, 
2  Macn.  &  G.  298;  Wintour  v.  Clifton,  8  De  Gex,  M.  &  G.  641,  21  Beav. 
447;  Howells  v.  Jenkins,  1  De  Gex,  J.  &  S.  617,  2  Johns.  &  H.  706; 
Stephens  v.  Stephens,  1  De  Gex  &  J.  62;  Dummer  v.  Pitcher,  2  Mylne 

§488,  (e)  Brown  v.  Ward,  103  interest  devises  the  fee);  Ditch  v. 
N.  C.  178,  9  S.  E.  300  (owner  of  life       Sennott,  117  111.  362,  7  N.  E.  640. 


§  489  EQUITY    JUKISPKUDENCE.  ,  926 

§  4S9.  The  Donor  Owns  Only  an  Undivided  Share  of  the 
Property. — If  a  testator  owning  an  undivided  share  uses 
language  of  description  and  donation  which  may  apply  to 
and  include  the  whole  property,  and  by  the  same  will  gives 
benefits  to  his  co-owner,  the  question  arises  whether  such 
co-owner  is  bound  to  elect  between  the  benefits  conferred  by 
the  will  and  his  own  share  of  the  property.  Prima  facie 
a  testator  is  presumed  to  have  intended  to  bequeath  that 
alone  which  he  owned, — that  only  over  which  his  power  of 
disposal  extended.  Wherever,  therefore,  the  testator  does 
not  give  the  whole  property  specifically,  but  employs  gen- 
eral words  of  description  and  donation,  such  as  "all  my 
lands7"  and  the  like,  it  is  well  settled  that  no  case  for  an 
election  arises,  because  there  is  an  interest  belonging  to 
the  testator  to  which  the  disposing  language  can  apply, 
and  the  prima  facie  presumption  as  to  his  intent  will  con- 
trol.^  «■    On  the  other  hand,  if  the  testator  devises  the  prop- 

&  K.  262,  5  Sim.  35 ;  Shuttleworth  v.  Greaves,  4  Mylne  &  C.  35 ;  Wilkin- 
son V.  Dent,  L.  R.  6  Ch.  339;  Grosvenor  v.  Durston,  25  Beav.  97;  Usticke 
V.  Peters,  4  Kay  &  J.  437;  Fitzsimmons  v.  Fitzsimmons,  28  Beav.  417; 
IMiller  v.  Thurgoocf,  33  Beav.  496;  Bull  v.  Church,  5  Hill,  207,  2  Denio, 
430,  43  Am.  Dec.  754;  Fuller  v.  Yeates,  8  Paige,  325;  Sandford  v.  Jack- 
son, 10  Paige,  266;  Vernon  v.  Vernon,  53  N.  Y.  351;  Savage  v.  Burnham, 
17  N.  Y.  561,  577;  Leonard  v.  Steele,  4  Barb.  20;  Lewis  v.  Smith,  9  N.  Y. 
502,  61  Am.  Dec.  706;  Mills  v.  Mills,  28  Barb.  454;  Morrison  v.  Bowman, 
29  Cal.  348;  Chapin  v.  Hill,  1  R.  I.  446;  ColUns  v.  Carman,  5  Md.  503; 
Stark  v.  Hunton,  1  N.  J.  Eq.  216 ;  Higginbotham  v.  Cornwell,  8  Gratt.  83, 
56  Am.  Dec.  130;  Douglas  v.  Feay,  1  W.  Va.  26;  Hyde  v.  Baldwin,  17 
Pick.  303,  308;  Smith  v.  Guild,  34  Me.  443,  447;  Weeks  v.  Patten,  18 
Me.  42,  36  Am.  Dec.  696;  George  v.  Bussing,  15  B.  Mon.  558;  Apperson 
V.  Bolton,  29  Ark.  418;  Ailing  v.-  Chatfield,  42  Conn.  276;  Brown  v. 
Brown,  55  N.  H.  106;  Cox  v.  Rogers,  77  Pa.  St.  160;  Young  v.  Pickens, 
4fi  Ind.  23 ;  Metteer  v.  Wiley,  34  Iowa,  214 ;  Colgate  v.  Colgate,  23  N.  J. 
Eq.  372;  Worthen  v.  Pearson,  33  Ga.  385,  81  Am.  Dec.  213. 

§  489,  1  Dummer  v.  Pitcher,  2  Mylne  &  K.  262 ;  Usticke  v.  Peters,  4 
Kay  &  J.  437;  Miller  v.  Thurgood,  33  Beav.  496,  per  Lord  Romilly,  M.  R.; 
Rancliffe  v.  Parkyns,  6  Dow,  149.     In  Miller  v.  Thurgood,  33  Beav.  496, 

§  489,  (a)  The  text  is  quoted  in  La  426,  and  Herrick  v.  Miller,  69  Wash. 
Tourette  v.  La  Tourette,  15  Ariz.  456,  125  Pac.  974;  cited  in  Penn  r. 
200,   Ann.   Cas.   1915B,   70,   137   Pac.       Guggenheimer,  76  Va.  839,  847;  Pratt 


927  CONCERNING   ELECTION.  §  489 

erty  specifically  by  language  indicating  a  specific  gift  of 
the  property,  an  election  becomes  necessary.  It  seems  now 
to  be  settled  by  the  more  recent  English  decisions  that  when 
the  owner  of  an  undivided  share  devises  or  bequeaths  the 
property  by  words  of  description  and  donation  importing 
an  intent  to  give  the  entirety,  then  a  case  of  election  is 
raised  against  the  other  co-owner  who  receives  a  benefit 
under  the  same  will. 2  t>     The  conclusion  which  is  plainly 

a  testator  owned  a  freehold  lease  in  Potter  Street  and  another  in  South 
Street,  and  an  undivided  two  thirds  of  a  house  and  of  eighteen  cottages 
in  South  Street,  the  other  third  belonging  to  his  wife.  He  devised  all 
his  freehold,  messuages,  cottages,  etc.,  in  the  two  streets,  specifically  men- 
tioning them,  to  his  wife  for  her  life,  and  after  her  death  to  his  children 
in  fee.  Lord  Romilly  held  that  she  was  bound  to  elect  between  her  one 
third  of  the  house  and  cottages,  and  the  benefits  given  by  the  will.  He 
said:  "If  the  testator  had  devised  his  property  in  these  terms,  'all  and 
every  my  freeholds  in  Potter  Street  and  South  Street,  and  elsewhere,'  I 
should  be  of  opinion  that  no  case  for  an  election  arose.  But  he  specifi- 
cally points  to  his  cottages  in  South  Street,"  etc. 

§  489,  2  Shuttleworth  v.  Greaves,  4  Mylne  &  C.  35 ;  Miller  v.  Thurgood, 
33  Beav.  496;  Padbury  v.  Clark,  2  Macn.  &  G.  298;  Fitzsimmons  v.  Fitz- 
simmons,  28  Beav.  417;  Grosvenor  v.  Durston,  25  Beav.  97;  Howells  v. 
Jenkins,  2  Johns.  &  H.  706;  Grissell  v.  Swinhoe,  L.  R.  7  Eq.  291,  295; 
Wilkinson  v.  Dent,  L.  R.  6  Ch.  339.  In  Padbury  v.  Clark,  2  Macn.  &  G. 
298,  a  testator  owned  an  undivided  half  of  a  certain  house,  and  one  Mary 
Cox  owned  the  other  half.  He  devised  "all  that  my  freehold,  messuage, 
and  tenement,  with  the  gai'den  and  all  the  ajDpurtenances,  situate  at  Tot- 
tenham, and  now  on  lease  to  T.  Upton,"  to  the  plaintiff,  and  gave  certain 
bequests  to  Mary  Cox.  Lord  Cottenham  held  that  this  language  showed 
a  clear  intention  to  devise  the  house  as  an  entirety,  and  put  Mary  Cox 
to  an  election.  In  Howells  v.  Jenkins,  2  Johns.  &  H.  706,  a  testator,  own- 
ing an  undivided  half  of  two  farms,  another  undivided  fourth  of  which 
belonged  to  W.,  devised  one  of  these  farms  to  E.  and  W.,  and  W.  was 

V.   Douglas.   38   N.   J.  Eq.   516,   538;  76    Va.    839,    847,    and   in   Cooley   v. 

In  re  Gotzian,  34  Minn.  159,  57  Am.  Houston,  229  Pa.  St.  495,  78  Atl.  1129. 

Rep.    43,    24    N.    W.    920;    Toney    v.  See,  also.  Ditch  v.  Sennott,  117  111. 

Spragins,  80  Ala.  541.     See,  also.  In  362,  7  N.  K  640;  Job  Haines  Home 

re  Gilmore,  81  Cal.  240,  22  Pac.  655;  for    Aged    People    v.    Keene     (N.  J. 

Haack  v.  Weicken,  118  N.  Y.  75,  23  Eq.),   101    Atl.    512;     Waggoner    r. 

N.  E.  133.  Waggoner,  111  Va.  325,  30  L.  E.  A. 

§489,    (b)    The   text   is   cited   and  (N.  S.)   644,  68  S.  E.  990. 
followed  In   Penn  v.   Guggenheimer, 


§  489  EQUITY    JURISPRUDENCE.  928 

deducible  from  these  recent  decisions  in  England  is,  that 
when  a  person  owns  an  undivided  interest  or  share  in  any 
species  of  property, — a  house  and  lot,  a  farm,  a  fund  of 
securities,  or  a  fund  of  money, — and  he  does  not  use  gen- 
eral words  of  gift,  such  as  *'all  my  estate,"  "all  my  prop- 
erty," and  the  like,  but  purports  to  give  the  whole  thing 
itself,  using  language  which,  by  a  reasonable  interpreta- 
tion, must  necessarily  describe  and  define  the  whole  corpus 
of  the  thing  in  which  his  partial  interest  exists,  as  a  dis- 

held  bound  to  elect.  In  Grosvenor  v.  Durston,  25  Beav.  97,  a  testator, 
having  certain  public  funds  which  stood  in  the  joint  names  of  himself  and 
his  wife,  bequeathed  away  his  funded  stock  generally,  and  also  made  a 
provision  for  his  widow;  she  was  put  to  her  election.  In  Grissell  v.  Swin- 
hoe,  L.  R.  7  Eq.  291,  295,  a  testator  was  entitled  to  one  half  of  a  fund  and 
a  certain  lady  was  entitled  to  the  other  half.  In  his  will,  after  reciting 
that  he  was  entitled  to  the  whole  fund,  he  purported  to  bequeath  the  whole 
and  to  give  one  half  of  it  to  the  husband  of  the  lady,  who  was  really 
owner  of  the  other  half.  This  husband  had  become  administrator  of  his 
wife  on  her  death,  and  succeeded  to  her  half  by  virtue  of  his  administra- 
tion. The  court  held  that  ordinarily  under  the  general  rule,  a  case  for 
an  election  would  have  arisen,  but  the  husband  was  not  required  to  elect 
solely  because  he  was  not  entitled  to  the  other  half  in  his  own  right.  In 
Wilkinson  v.  Dent,  L.  R.  6  Ch.  339,  a  testatrix  owned  an  undivided  half 
of  an  estate.  She  devised  the  estate  as  follows:  "I  give  and  devise  all 
and  singular  the  estate  and  mines  of  Aroa,  in  Columbia,  formerly  the 
estate  of  Simon  Bolivar,"  etc.,  upon  trusts,  for  the  benefit,  among  others, 
of  the  parties  who  were  entitled  to  some  interest  in  the  other  half  of  the 
estate.  James,  L.  J.,  said:  "It  appears  to  me  utterly  impossible  to  sup- 
pose that  when  she  said,  'I  give  and  devise  all,'  etc.,  she  meant  only  to 
give  such  estate  and  interest  as  she  had  in  the  property.  A  will  must  be 
construed  reasonably  even  where  by  so  doing  parties  are  put  to  their 
election."  ® 

§  489,  (c)  In  Wooley  v.  Schrader,  tended  to  be  devised,  the  court  held 
116  111.  29,  4  N.  E.  658,  the  testator  that  a  provision  in  the  will  direct- 
had  the  legal  title  to  a  piece  of  ing  that  compensation  be  made  to 
land,  and  his  son  had  the  equitable  the  son  for  improvements  made  by 
title  and  a  right  to  a  conveyance,  him  was  decisive  in  showing  that 
The  testator  devised  the  land  to  an-  the  testator  intended  to  dispose  of 
sther  by  general  description,  and  the  entire  fee,  and  not  his  mere 
made  other  provisions  for  his  son.  legal  title,  and  that  the  son  was  put 
In  determining  whether  the  entire  to  an  election, 
estate,  legal  and  equitable,   was  in- 


929  CONCERNING   ELECTION.  §  490 

tinct  and  identified  piece  of  property,  then  an  intention 
to  bestow  the  whole,  and  not  merely  the  testator's  undi- 
vided share,  must  be  inferred,  and  a  case  for  an  election 
arises.  The  language  of  description  may  be  by  metes  and 
bounds,  or  may  be  any  other  form  of  words  which  will  serve 
clearly  to  point  out  and  identify  the  entire  subject-matter.^  d 

§  490.  The  Donor  Owns  Only  a  Future  Interest. — The 
rule  thus  established  with  reference  to  present  undivided 
interests  is  not  applied,  at  least  with  equal  strictness,  to 
cases  where  the  donor  has  only  a  future  interest,  as  a 
remainder  or  reversion  in  fee.  If  a  testator,  owning  a  re- 
mainder or  reversion  in  fee,  with  no  power  over  the  prece- 
dent life  estates,  uses  general  language  of  disposal,  such 
as  "all  my  estate,"  or  even  disposes  of  the  property  as 
a  whole  by  name,  he  is  to  be  regarded  as  intending  only 
to  dispose  of  his  future  interest,  and  no  necessity  for  an 
election  arises.^  This  result,  however,  is  not  universal. 
Although  a  testator  must  be  taken  prima  facie  to  have  in- 
tended only  to  dispose  of  what  belongs  to  him,  there  is  no 
such  rule  as  that  where  a  testator  has  a  limited  interest  in 
property  forming  the  subject  of  a  devise  or  bequest,  the  in- 
tention to  make  a  disposition  extending  beyond  that  interest 
cannot  be  made  clear  by  anything  short  of  positive  declara- 

§  489,  3  As  an  illustration,  if  a  testator  owns  an  undivided  half  of  a 
certain  farm,  and  should  devise  the  farm  itself  as  a  whole,  either  describ- 
ing it  by  metes  and  bounds,  or  identifying  it  as  a  whole  by  any  other 
form  of  words,  an  election  would  be  necessary.  The  cases  which  have 
arisen  in  the  United  States  presenting  the  closest  analogy  to  these  recent 
English  decisions  are  those  which  are  found  in  the  California  reports 
dealing  with  the  "community  property"  of  the  husband  and  wife.  It 
will  be  seen,  in  a  subsequent  paragraph,  that  the  rule  as  stated  in  the 
text  and  established  by  the  English  courts  has  not  been  adojated  by  the 
California  courts  under  circumstances  closely  analogous.* 

§  490,  1  Rancliffe  v.  Parkyns,  6  Dow,  149. 

§489,  (d)  The  text  is  quoted  and  §489,   (e)   See  post,  §§  503-505. 

followed  in  Penn  v.  Guggenheimer, 
76  Va.  839,  847. 
1—59 


§  490  EQUITY    JURISPRUDENCE.  930 

tion.  The  context  of  the  will,  and  the  aptitude  of  the  testa- 
mentary limitations  to  the  testator's  interest,  ought  to  be 
regarded.  If,  from  the  context  of  the  will  and  all  the  dis- 
positions taken  together,  an  intention  on  the  part  of  the 
testator  is  clear  to  give  the  antecedent  life  estates  as  well 
as  his  own  remainder  or  reversion  in  fee,  then  an  election 
becomes  necessary  by  those  who,  owning  the  life  estates, 
have  received  other  benefits  from  the  will.^  It  has  also 
been  held  that  where  a  testator  has  a  contingent  interest 
only  in  certain  property, — an  interest  which  will  only  vest 
in  him  upon  the  happening  of  a  contingent  event, — and  he 
bequeaths  the  property  by  language  of  gift  general  in  its 
terms  and  absolute  in  its  form,  without  referring  to  the  con- 
tingent character  of  his  interest,  he  must  be  assumed  to 
have  intended  to  dispose  only  of  his  own  contingent  interest, 
and  not  to  make  an  absolute  gift.  If  the  contingency  should 
not  happen,  and  the  bequest  therefore  failed,  no  election 
would  be  necessary  by  the  person  who  succeeded  to  prop- 
erty and  who  also  took  a  benefit  under  the  will.^ 

§  490,  2  Wintoi;r  v.  Clifton,  8  De  Ges,  M.  &  G.  641,  649,  650,  21  Beav. 
447.  The  testator  had  several  different  estates.  Some  of  them  he  owned 
absolutely;  but  in  one  of  them  he  owned  only  the  fee  in  remainder,  the 
life  estates  being  held  by  others.  His  will  made  very  complicated  dis- 
positions, which  applied  alike  to  all  the  estates.  From  the  whole  scheme 
of  the  will  the  court  held  the  intent  was  clear  to  dispose  of  the  antece- 
dent life  interest  in  the  last-mentioned  estate,  as  well  as  the  remainder  in 
fee,  and  an  election  was  necessary.  For  an  extract  from  the  opinion,  see 
ante,  §  474,  note.  See,  also,  Smith  v.  Smith,  14  Gray,  532 ;  Hyde  v.  Bald- 
win, 17  Pick.  308;  Smith  v.  Guild,  34  Me.  443;  Hamblett  v.  Hamblett, 
6  N.  H.  333;  Fulton  v.  Moore,  25  Pa.  St.  468;  Weeks  v.  Patten,  18  Me. 
42,  36  Am.  Dec.  696. 

§  490,  3  Havens  v.  Sackett,  15  N.  Y.  365.  The  testator  was  entitled  to 
certain  bank  stocks,  provided  he  should  siurvive  his  brother's  widow,  but 
in  case  he  died  before  the  widow  the  stocks  should  belong  to  the  children. 
He  bequeathed  the  stocks  to  the  plaintiff  as  follows:  "The  stocks  given 
to  me  by  my  said  brother  after  the  decease  of  his  widow."  The  testator 
dying  before  his  widoTjr,  the  stocks  passed  to  his  children;  and  they  were 
held  not  bound  to  elect  between  these  stocks  and  the  benefits  given  by 
their  father's  will.     See  extract  from  the  opinion,  ante,  §  488,  note. 


931  CONCEENING    ELECTION.  §  491 

§  491.  Devise  of  Lands  Encumbered,  Where  the  Encum- 
brancers Also  Receive  Benefits  Under  the  Will. — Where  a 
testator  owns  property  which  is  subject  to  some  encum- 
brance or  charge,  and  he  devises  it,  distinctly  describing  it, 
but  not  making  any  provision  with  respect  to  the  encum- 
brance, and  at  the  same  time  he  gives  some  other  bequest 
to  the  encumbrancer  or  holder  of  the  charge,  no  case  for  an 
election  by  the  latter  is  thereby  raised.  The  testator  is 
regarded  as  having  intended  to  devise  only  the  property 
subject  to  the  charge  or  encumbrance. ^  The  same  rule  has 
been  applied  to  general  creditors,  where  a  will  contains  a 
devise  or  bequest  of  property  in  trust  for  the  payment  of 
the  testator's  debts. ^ 

§  491,  1  Stephens  v.  Stephens,  1  De  Gex  &  J.  62,  3  Drew.  697.  The 
question  in  this  ease  was  Avhether  the  defendants,  brothers  and  sisters  of 
the  plaintiff,  were  not  bound  to  elect  between  the  benefits  given  to  them 
by  the  will  of  their  father,  John  S.,  and  the  benefit  of  a  charge  for  ten 
thousand  pounds,  created  in  their  favor  by  the  will  of  their  grandfather, 
William  S.,  upon  an  estate  which  the  plaintiff,  the  elder  brother,  took 
under  that  will,  but  which  the  father,  John  S.,  had  also  purported  to 
devise  to  him  by  his  will.  The  court  of  appeal,  Lord  Chancellor  Cran- 
worth,  and  Lords  Justices  Knight  Bruce  and  Turner,  held  that  under  the 
settled  rule  applicable  under  such  circumstances,  the  defendants  were  not 
bound  to  elect.  Lord  Cranworth  said  (p.  71)  :  "Where  a  testator  simply 
gives  an  estate,  without  saying  more,  he  is  to  be  taken  to  mean  the  estate 
in  its  present  condition,  subject  to  the  existing  charges  upon  it.  Lord 
Chief  Baron  Eyre,  in  Blake  v.  Bunbury,  1  Ves.  514,  says:  'If  there  is  an 
encumbrance  upon  the  estate  devised  in  such  terms'  (i.  e.,  in  general  terms 
applicable  to  an  estate  of  which  the  testator  is  absolute  owner),  'the  mere 
language  of  the  will  affords  no  inference  of  an  intention  to  dispose  of 
the  estate  free  from  that  encumbrance.' "  An  intention  to  devise  free 
from  the  encumbrance,  so  as  to  put  the  encumbrancer  also  receiving  a 
benefit  to  his  election,  must  appear  conclusively  from  the  words  of  the 
will :  Sadlier  v.  Butler,  1  1.  R.  Eq.  415,  423. 

§  491,  2  Thus  where  the  will  contains  such  a  devise,  it  has  been  held 
that  creditors  need  not  elect  between  the  benefit  of  such  provision,  and 
the  enforcement  of  their  legal  rights  against  other  funds  or  assets  of  the 
estate  disposed  of  by  the  will :  Kidney  v.  Cousmaker,  12  Ves.  136,  154,  per 
Sir  William  Grant;  Clark  v.  Guise,  2  Ves.  Sr.  617;  Deg  v.  Deg,  2  P.  Wms. 
412,  418.  The  doctrine  of  these  cases,  viz.,  that  the  necessity  of  election 
does  not  extend  to  creditors,  has  been  rejected  by  certain  decisions  of  the 


§  §  492,  493  EQUITY   JUEISPKUDENCE.  932 

§  492.  Dower — Election  by  a  Widow  Between  Her  Dower 
and  Benefits  Given  by  Her  Husband's  Will. — Where  a  hus- 
band devises  or  bequeaths  property  to  his  wife,  the  ques- 
tion arises,  whether  she  must  elect  between  this  benefit  and 
her  dower,  or  whether  she  is  entitled  to  claim  both  her 
dower  and  the  testamentary  gift.  This  is  by  far  the  most 
important  and  frequent  aspect  in  which  the  doctrine  of 
election  has  come  before  the  American  courts, — so  impor- 
tant that  election  itself  has  sometimes  been  treated  by 
American  writers  as  a  mere  incident  of  dower.  In  consid- 
ering this  branch  of  the  subject,  I  purpose,  in  the  first 
place,  to  state  the  general  rule  for  the  interpretation  of 
such  wills  as  settled  by  judicial  authority,  and  then  to  ex- 
plain the  most  important  kinds  of  particular  testamentary 
dispositions  which  have  given  rise  to  more  special  and 
definite  rules. 

§  493.  The  General  Rule. — In  England  and  in  the  states 
where  the  common-law  dower,  or  an  interest  of  the  wife 
analogous  thereto,  exists,  the  following  general  rule  for  the 
interpretation  of  a  husband's  will,  and  for  the  determina- 
tion of  his  widow's  obligation  to  elect,  has  been  established 
by  the  overwhelming  weight  of  authority.  If  the  will  de- 
clares in  express  words  that  the  testamentary  gift  is  in- 
tended to  be  in  lieu  of  dower,  the  widow  is  obliged,  even  at 
law,  to  elect.i  When,  however,  the  will  contains  no  such 
express  words,  every  devise  or  bequest  made  to  the  wife  is 
presumed  to  be  intended  as  a  provision  in  addition  to  her 
dower  right,  and  in  general,  she  will  not  be  required  to 
elect.  The  duty  of  electing  may  arise  even  in  the  absence 
of  any  express  declaration  that  the  testamentary  gift  is 
in  lieu  of  dower,  but  can  only  arise  from  a  clear,  unequivocal 
intention  exhibited  in  provisions  of  the  will  incompatible 

Pennsylvania  supreme  court,  which  seem  to  require  an  election  by  the 
creditors  under  such  circumstances.  See  Irwin  v.  Tabb,  17  Serg.  &  R. 
419,  423 ;  Adlum  v.  Yard,  1  Rawle,  163,  171,  18  Am.  Dec.  608. 

§  493,  1  Nottley  v.  Palmer,  2  Drew.  93;  Boynton  v.  Boynton,  1  Brown 
Ch.  445. 


933  CONCERNING   ELECTION.  §  493 

with  the  right  of  dower.  *'If  there  is  anything  ambiguous 
or  doubtful,  if  the  court  cannot  say  that  it  was  clearly  the 
intention  to  exclude,  then  the  averment  that  the  gift  was 
made  in  lieu  of  dower  cannot  be  supported ;  and  to  make  a 
case  of  election,  that  is  necessary,  for  a  gift  is  to  be  taken 
as  pure  until  a  condition  appear.  The  only  question  made 
in  all  the  cases  is,  whether  an  intention,  not  expressed  in 
apt  words,  can  be  collected  from  the  terms  of  the  instru- 
ment. The  result  of  all  the  cases  of  implied  intention  seems 
to  be,  that  the  instrument  must  contain  some  provision  in- 
consistent with  the  assertion  of  a  right  to  demand  a  third 
of  the  lands,  to  be  set  out  by  metes  and  bounds. "^  "The 
inquiry  is,  whether  an  intention  in  the  testator  that  the 
testamentary  gift  is  to  be  in  lieu  of  dower  can  be  collected 
by  clear  and  manifest  implication  from  the  provisions  of 
the  will.  To  enable  us  to  deduce  such  an  implied  intention, 
the  claim  of  dower  must  be  inconsistent  with  the  will,  and 
repugnant  to  its  dispositions,  or  some  of  them.  It  must,  in 
fact,  disturb  or  disappoint  the  will. "3  '<A  wife  cannot  be 
deprived  of  her  dower  by  a  testamentary  disposition  in  her 
favor,  unless  the  testator  has  declared  the  same  to  be  in  lieu 
of  dower,  either  in  express  words,  or  by  necessary  implica- 
tion. To  compel  a  widow  to  elect  between  the  dower  and  a 
testamentary  provision,  where  the  testator  has  not  in  terms 
declared  his  intention  on  the  subject,  it  is  not  sufficient  that 
the  will  renders  it  doubtful  whether  he  intended  that  she 
should  have  her  dower  in  addition  to  the  provision;  but 
the  terms  and  provisions  of  the  will  must  be  totally  incon- 
sistent with  her  claim  of  dower  in  the  property  in  which 
such  dower  is  claimed."  ^  It  results  that  whatever  be  the 
dispositions  of  the  will  to  the  widow  and  to  others,  the  pre- 

§  493,  2  Birmingham  v.  Kirwin,  2  Schoales  &  L.  444,  452,  per  Lord 
Redesdale. 

§  493,  3  Adsit  v.  Adsit,  2  Johns.  Ch.  448,  7  Am.  Dec.  539,  per  Chan- 
cellor Kent. 

§  493,  4  Church  v.  Bull,  2  Denio,  430,  43  Am.  Dec.  754,  per  Chancellor 
Walworth. 


§  493  EQUITY    JURISPRUDENCE.  934 

sumption  is  strong  in  favor  of  tlie  intention  that  tlie  widow 
shall  have  both  the  gift  and  her  dower;  the  courts  lean 
heavily  in  support  of  this  presumption;  nothing  short  of 
a  perfect  incongruity  between  the  dispositions  of  the  will 
and  the  widow's  claim  to  set  out  her  dower  by  metes  and 
hounds  from  her  husband's  lands  can  put  her  to  an  election. 
However  positive  and  absolute  the  testator's  language  of 
donation,  the  court  will,  if  possible,  read  it  as  meaning,  *'I 
devise  and  bequeath  all  my  interest  in  the  land  subject  to 
my  wife's  dower  right. "^     It  must  also  be  carefully  ob- 

§  493,  5  Dowson  v.  Bell,  1  Keen,  761 ;  Harrison  v.  Harrison,  1  Keen, 
765;  Holclich  v.  Holdich,  2  Younge  &  C.  18,  23;  Parker  v.  Sowerby,  4 
De  Gex,  M.  &  G.  321,  and  cases  cited;  Thompson  v.  Burra,  L.  R.  16  Eq. 
592;  Roberts  v.  Smith,  1  Sim.  &  St.  513;  Roadley  v.  Dixon,  3  Russ.  192, 
200,  201;  Villa  Real  v.  Lord  Galway,  1  Brown  Ch.  292,  note;  Amb.  6S2; 
Pitts  V.  Snowden,  1  Brown  Ch.  292,  note;  Foster  v.  Cooke,  3  Brown  Ch. 
347;  Pearson  v.  Pearson,  1  Brown  Ch.  292;  French  v.  Davies,  2  Ves.  572; 
Greatorex  v.  Cary,  6  Ves.  615;  Birmingham  v.  Kirwan,  2  Schoales  &  L. 
444;  Lord  Dorchester  v.  Earl  of  Effingham,  Coop.  419;  Dickson  v.  Robin- 
son, 1  Jacob,  503;  Taylor  v.  Taylor,  1  Younge  &  C.  727;  Pepper  v.  Dixon, 
17  Sim.  200;  Lowes  v.  Lowes,  5  Hare,  501;  Reynolds  v.  Torin,  1  Russ. 
129,  133.  In  Dowson  v.  Bell,  1  Keen,  761,  Lord  Langdale,  M.  R.,  said 
(p.  764)  :  "That  the  testator  had  himself  no  intention  to  leave  his  wife 
her  claim  for  dower,  when  he  made  this  will,  cannot  be  reasonably  doubted, 
but  the  question  is,  whether  the  devise  is  of  such  a  nature  as  to  he  incon- 
sistent with  the  enjoyment  of  her  dower  by  the  widow.  In  the  considera- 
tion of  this  question,  when  the  testator  speaks  of  all  his  estates,  he  must 
be  held  to  mean  all  his  estates  subject  to  the  legal  rights  against  them, 
and  among  these  is  the  wife's  right  to  dower."  In  Harrison  v.  Harrison, 
1  Keen,  765,  the  same  able  judge  said  (p.  767) :  "The  principle  applicable 
to  cases  of  this  kind  is,  that  where  a  testator  makes  a  provision  for  his 
widow  out  of  his  real  estates,  she  will  not  be  excluded  from  dower,  unless 
the  enjoyment  of  dower,  together  with  the  provision  made  by  the  will, 
appears  to  be  inconsistent  with  the  intention  of  the  testator  as  it  is  to 
be  collected  from  the  language  of  the  will."  In  Holdich  v.  Holdich,  2 
Younge  &  C.  18,  23,  Knight  Bruce,  V.  C,  said:  "To  put  the  wife  to  her 
election  on  the  ground  that  her  claim  to  dower  is  inconsistent  with  the 
intention  of  the  testator  as  to  some  other  legatee  or  devisee,  there  must 
he  something  heyond  the  mere  gift  to  the  legatee  or  devisee.  There  must 
be  such  circumstances  attending  the  gift  as  that,  if  dower  be  admitted, 
the  legatee  or  devisee  will  be  disappointed  of  the  enjoyment  of  the  prop- 
erty in  the  mode  pointed  out  by  the  testator."     In  Roadley  v.  Dixon,  3 


935  CONCERNING  ELECTION.  §  493 

served,  as  a  conclusion  drawn  from  all  the  cases  of  author- 
ity, that  it  is  not  sufficient  to  raise  a  case  for  an  election, 
that  an  intention  can  even  be  plainly  inferred  from  the  dis- 
positions of  the  will  for  the  widow  to  take  the  testament 

Rnss.  192,  200,  Lord  Lyndhurst  said:  "The  law  upon  questions  of  this 
kind  is  very  distinctly  and  clearly  settled.  The  widow  will  be  entitled  to 
her  dower,  unless  in  the  will  under  which  she  takes  a  benefit  there  are 
provisions  absolutely  inconsistent  with  her  claim  of  dower."  In  Reynolds 
V.  Torin,  1  Russ.  129,  133,  Lord  Gifford,  M.  R.,  said:  "To  exclude  the 
widow  from  her  legal  right,  either  there  must  be  an  express  declaration 
to  that  effect,  or  it  must  appear  clearly  from  the  whole  frame  of  the  will 
that  it  was  the  testator's  intention  to  give  her  some  interest  wholly  in- 
consistent with  her  enjoyment  ,of  that  legal  right."  The  remaining  cases 
cited  above  will  show  what  dispositions  of  a  will  the  English  courts,  in 
applying  this  rule,  have  regarded  as  sufficiently  inconsistent  with  her  claim 
of  dower,  in  order  to  put  a  widow  to  an  election.  The  general  rule  thus 
established  in  England  is  fully  adopted  by  the  decisions  in  all  the  states 
where  the  common-law  dower,  or  a  legal  right  analogous  thereto,  still 
exists  not  essentially  altered  by  statute.  Adsit  v.  Adsit,  2  Johns.  Ch.  448, 
7  Am.  Dec.  539;  Smith  v.  Kinskern,  4  Johns.  Ch.  9;  Swaine  v.  Ferine, 
5  Johns.  Ch.  482,  9  Am.  Dec.  318;  Larrabee  v.  Van  Alstyne,  1  Johns. 
307,  3  Am.  Dec.  333 ;  Van  Orden  v.  Van  Orden,  10  Johns.  30,  6  Am.  Dec. 
314;  Jackson  v.  Churchill,  7  Cow.  287,  17  Am.  Dec.  514;  Wood  v.  Wood,  5 
Paige,  597,  601,  28  Am.  Dec.  451 ;  Fuller  v.  Yates,  8  Paige,  325 ;  Sandf  ord 
V.  Jackson,  10  Paige,  266;  Havens  v.  Havens,  1  Sand.  Ch.  325,  330;  Bull 
V.  Church,  5  Hill,  206,  2  Denio,  430,  43  Am.  Dec.  754 ;  Sheldon  v.  Bliss,  8 
N.  Y.  31 ;  Lewis  v.  Smith,  9  N.  Y.  502,  61  Am.  Dec.  706 ;  Savage  v.  Burn- 
ham,  17  N.  Y.  561,  577;  Tobias  v.  Ketchum,  32  N.  Y.  319,  326;  Vernon 
V.  Vernon,  53  N.  Y.  351,  362;  Lefevre  v.  Lefevre,  59  N.  Y.  435;  Leonard 
V.  Steele,  4  Barb.  20 ;  Lasher  v.  Lasher,  13  Barb.  106 ;  Mills  v.  Mills,  28 
Barb.  454;  Vedder  v.  Saxton,  46  Barb.  188;  Evans  v.  Webb,  1  Yeates, 
424,  1  Am.  Dec.  308;  Hamilton  v.  Buckwalter,  2  Yeates,  389,  1  Am.  Dec. 
350;  Duncan  v.  Duncan,  2  Yeates,  302;  Webb  v.  Evans,  1  Binn.  565,  572; 
Cauffman  v.  Cauffman,  17  Serg.  &  R.  16,  25;  Preston  v.  Jones,  9  Pa.  St. 
456,  460;  Fulton  v.  Moore,  25  Pa.  St.  468;  Cox  v.  Rogers,  77  Pa.  St.  160; 
Stark  V.  Hunton,  1  N.  J.  Eq.  217,  224;  Van  Arsdale  v.  Van  Arsdale,  26 
N.  J.  L.  404,  417;  Colgate  v.  Colgate,  23  N.  J.  Eq.  372;  Perkins  v.  Little, 
1  Greenl.  148;  O'Brien  v.  Elliot,  15  Me.  125,  32  Am.  Dec.  137;  Weeks  v. 
Patten,  18  Me.  42,  36  Am.  Dec.  696;  Smith  v.  Guild,  34  Me.  443;  Brown 
V.  Brown,  55  N.  H.  106;  Hamblett  v.  Hamblett,  6  N.  H.  333;  Reed  v. 
Diekerman,  12  Pick.  145,  149 ;  Hyde  v.  Baldwin,  17  Pick.  303,  308 ;  Kemp- 
ston's  Appeal,  23  Pick.  163;  Smith  v.  Smith,  14  Gray,  532;  Lord  v.  Lord, 
23  Conn.  327,  331;  Ailing  v.  Chatfield,  42  Conn.  276;  Chapin  v.  Hill,  1 


§493 


EQUITY    JUKISPKUDENCE. 


936 


gift  in  lieu  of  her  dower;  in  order  to  put  her  to  an  elec- 
tion, such  an  intention  on  the  part  of  the  testator  must 
be  expressed  by  means  of  testamentary  dispositions  and 
provisions  which  are  wholly  and  unmistakably  inconsistent 

R.  I.  446;  Hall's  Case,  1  Bland,  203,  17  Am.  Dec.  275;  Collins  v.  Carman, 
5  Md.  503;  Wiseley  v.  Findlay,  3  Rand.  361,  15  Am.  Dec.  712;  Ambler  v. 
Norton,  4  Hen.  &  M.  23,  44;  Higginbotham  v.  Cornwell,  8  Gratt.  83,  56 
Am.  Dec.  130;  Dixon  v.  McCue,  14  Gratt.  540;  Pickett  v.  Peay,  3  Brev. 
545,  6  Am.  Dec.  594;  Gordon  v.  Stevens,  2  Hill  Ch.  46,  27  Am.  Dec.  445; 
Brown  v.  Caldwell,  1  Speer's  Eq.  322;  Snelgi-ove  v.  Snelgrove,  4  Desaus. 
Eq.  274,  294;  Tooke  v.  Hardeman,  7  Ga.  20;  Worthen  v.  Pearson,  33  Ga. 
385,  81  Am.  Dec.  213;  Adams  v.  Adams,  39  Ala.  274;  Apperson  v.  Bol- 
ton, 29  Ark.  418;  Carroll  v.  Carroll,  20  Tex.  731,  744;  Shaw  v.  Shaw, 
2  Dana,  342 ;  Timberlake  v.  Parish's  Ex'r,  5  Dana,  346 ;  Bailey  v.  Duncan, 
4  Mon.  256,  265,  266;  Douglas  v.  Feay,  1  W.  Va.  26;  Pemberton  v.  Pem- 
berton,  29  Mo.  408,  413;  Clark  v.  Griffith,  4  Iowa,  405;  Mitteer  v.  Wiley, 
34  Iowa,  214;  Herbert  v.  Wren,  7  Craneh,  370,  378.**  In  the  early  case 
of  Herbert  v.  Wren,  7  Craneh,  370,  378,  Marshall,  C.  J.,  thus  stated  the 
rule :  "It  is  a  maxim  of  a  court  of  equity  not  to  permit  the  same  person 


§  493,  (a)  This  paragraph  of  the 
text  is  cited  in  Gulf,  C.  &  S.  F.  Ry. 
Co.  T.  Brandenburg  (Tex.  Civ.  App.), 
167  S.  W.  170;  Herrick  v.  Miller,  69 
Wash.  456,  125  Pac.  974.  See,  also, 
Bennett  v.  Packer,  70  Conn.  357,  66 
Am.  St.  Kep.  112,  39  Atl.  739; 
Thompson  v.  Betts,  74  Conn.  576, 
92  Am.  St.  Rep.  235,  51  Atl.  564; 
Potter  V.  Workey,  57  Iowa,  66,  7 
N.  W.  685,  10  N.  W.  298;  Blair  v. 
Wilson,  57  Iowa,  178,  10  N.  W.  327; 
Snyder  v.  Miller,  67  Iowa,  261,  25 
N.  W.  240;  Daugherty  v.  Daugherty, 
69  Iowa,  679,  29  N.  W.  778;  Estate 
of  Blaney,  73  Iowa,  114,  34  N.  W. 
768;  Howard  v.  Watson,  76  Iowa, 
229,  41  N.  W.  45;  Kiefer  v.  Gillett, 
120  Iowa,  107,  94  N.  W.  270;  Hunter 
v.  Hunter,  95  Iowa,  728,  58  Am.  St. 
Kep.  455,  64  N.  W.  656;  Campbell  v. 
Sankey,  114  Iowa,  69,  86  N.  W.  48; 
Warner  v.  Hamill,  134  Iowa,  279, 
111  N.  W.  939;  Mohn  v.  Mohn,  148 
Iowa,  288,  126  N.  W.   1127;   Archer 


V.  Barnes,  149  Iowa,  658,  128  N.  W. 
969;    Thorpe    v.    Lyones,    160    Iowa 
415,   142   N.   W.   82;   In   re   Stevens 
Estate,    163    Iowa,    364,    144   N.    W 
644    (inconsistency    compelling   elec 
tion);    Sparks    v.    Dorrell,    151    Mo 
App.    173,   131    S.   W.    761    (personal 
property);    Job    Haines    Home    for 
Aged   People   v.   Keene    (N.   J.    Eq.), 
101   Atl.    512;    Matter   of   Zahrt,   94 
N.  Y.  605;  Aseh  v.  Asch,  113  N.  Y. 
232,  21  N.  E'.  70;  In  re  Gorden,  172 
N.   Y.   25,   92  Am.   St.   Rep.   689,   64 
N.    E.     753;     Durfee's    Petition,    14 
R.    I.    47;    Haszard    v.    Haszard,    19 
R.  I.  374,  34  Atl.  150;  Bannister  v. 
Bannister,  37  S.  C.  529,  16  S.  E.  612; 
Garrett  v.  Vaughan,  59  S.  C.  516,  38 
S.  E.  166;  Otts  v.  Otts,  80  S.  C.  16, 
61    S.    E.    109;    Scott   v.    Vaughn,   83 
S.  C.  362,   65  S.  E.  269;   Rutherford 
T.    Mayo,    76    Va.     117;     Nelson    v. 
Kowndar,    79    Va.    468;    Tracey    v. 
Shumate,    22   W.   Va.   474,   499;    At- 
kinson V.  Sutton,  23  W.  Va.  197. 


937  CONCERNING   ELECTION.  §  494 

with  the  assertion  of  her  claim  to  the  dower.  Mere  inten- 
tion of  the  testator  gathered  from  the  will  is  clearly  not 
enough ;  that  intention  must  have  been  shown,  or  carried 
into  operation,  by  totally  inconsistent  gifts  of  the  land  sub- 
ject to  the  dower.<5 

§  494,  A  Different  Statutory  Rule  in  Certain  States. — As 
will  more  particularly  appear  in  a  subsequent  paragraph, 
the  time  and  mode  of  electing  between  her  dower  and  a 
will,  by  a  widow,  is  very  precisely  regulated  in  many  of  the 
states  by  statute.  Either  as  a  result  of  this  legislation,  or 
of  statutes  changing  the  nature  of  dower,  a  general  rule  con- 
cerning the  necessity  of  election  by  widows,  quite  different 
from  that  set  forth  in  the  foregoing  paragraph,  has  been 

to  hold  under  and  against  a  will.  If,  therefore,  it  be  manifest  from  the 
face  of  the  will  that  the  testator  did  not  intend  the  provision  it  contains 
for  his  widow  to  be  in  addition  to  dower,  but  to  be  in  lieu  of  it,  if  his 
intention,  discovered  in  other  parts  of  the  will,  must  be  defeated  by  the 
allotment  of  dower  to  the  widow,  she  must  renounce  either  her  dower  or 
the  benefit  of  the  claims  under  the  will.  But  if  the  two  provisions  may 
stand  well  together,  if  it  may  fairly  be  presumed  that  the  testator  in- 
tended the  devise  or  bequest  to  his  wife  as  additional  to  her  dower,  then 
she  may  hold  both."  The  language  of  Marshall,  C.  J.,  in  this  last  clause 
of  the  extract  is  open  to  criticism,  as  not  expressing  correctly  the  inten- 
tion which  must  appear,  in  order  that  the  widow  may  hold  both  her  dower 
and  the  testamentary  gift.  The  general  rule  was  stated  perhaps  more 
accurately  by  Denio,  J.,  in  Lewis  v.  Smith,  9  N.  Y.  502,  61  Am.  Dec.  706, 
as  follows: 

"The  courts  do  not  inquire  whether  the  testamentary  provision  is  ade- 
quate, or  reasonably  proportionate  to  the  value  of  the  dower.  .  .  .  Where 
there  is  no  direct  expression  of  intention  that  the  provision  shall  be  in 
lieu  of  dower,  the  question  always  is,  whether  the  will  contains  any  pro- 
vision inconsistent  with  the  assertion  of  a  right  to  demand  a  third  of  the 
lands,  to  be  set  out  by  metes  and  bounds.  The  devises  in  the  will  must 
be  so  repugnant  to  the  claim  of  dower  that  they  cannot  stand  together."  ** 

§493,    (T»)    In  determining  whether  v.  Shumate,  22   W.  Va.  474;   Atkin- 

a   testamentary   disposition   was   in-  son  v.  Sutton,  23  W.  Va.  197. 

tended  in  place   of  dower,  the   fact  §  493,    (c)    The   text   is   quoted   in 

of  the  inadequacy  of  the  provision,  Stokes  v.  Pillow,  64  Ark.  1,  40  S.  W. 

which  was  known  to  the  testator,  is  580    (election    between    devise    and. 

considered  a  strong  indication  that  homestead   estate). 
such    was    not   the   intention:    Tracey 


§  494  EQUITY    JURISPEUDENCE.  938 

adopted  in  some  of  the  states.  By  this  rule,  wherever  a 
testamentary  disposition  in  behalf  of  his  widow  is  contained 
in  the  husband's  will,  and  his  intention  that  she  is  to  enjoy 
both  this  gift  and  her  dower  does  not  affirmatively  and  ex- 
pressly appear  on  the  face  of  the  instrument,  she  is  required 
to  elect  between  the  two.i 

§  494,  1  In  several  of  these  states  the  common-law  dower  has  been  abol- 
ished, and  a  statutory  right  to  a  portion  of  her  husband's  real  estate  has 
been  given  to  the  widow  in  place  of  the  dower.  In  many  of  the  states 
mentioned  in  this  note  it  will  be  seen  that  the  new  statutory  rule  concern- 
ing the  effect  of  a  testamentary  provision  in  favor  of  the  widow,  and 
the  consequent  necessity  for  her  to  elect,  extend  not  only  to  her  dower,  or 
to  the  portion  of  real  estate  given  in  place  of  dower,  but  also  to  her  dis- 
tributive share  of  her  husband's  personal  estate.  Wherever  an  election 
by  the  widow  is  required  under  the  statutes,  she  is  generally  obliged  to 
make  it  in  a  formal  manner,  by  means  of  a  written  instrument,  which  is 
either  filed  with  the  clerk  of  the  court,  or  entered  in  the  records  of  the 
pending  proceedings.  I  arrange  the  states  in  classes,  the  statutory  pro- 
vision of  all  those  which  constitute  a  class  being  substantially  the  same  in 
language,  and  actually  the  same  in  legal  effect. 

First  Class. — In  the  states  of  this  class  any  testamentary  provision  made 
by  the  husband's  will  in  favor  of  his  wife,  whether  devise  of  land,  or  be- 
quest of  personal  property,  is  deemed  to  be  in  lieu  of  her  dower  or  statu- 
tory portion  given  in  place  of  dower,  and  in  many  states  of  her  share  of 
the  personal  property,  and  bars  her  right  to  her  dower,  statutory  portion, 
or  share,  unless  it  plainly  appears  on  the  face  of  the  will  that  her  hus- 
band intended  she  should  have  both,  or  unless  she  duly  elect  to  waive  the 
testamentary  benefit.  Where  the  will  does  not  expressly  show  that  she 
was  to  have  both,  she  must,  within  a  certain  prescribed  time,  elect  against 
the  will,  and  must,  in  a  formal  manner,  waive  or  reject  the  testamentary 
provision,  or  else  she  will  be  deemed  to  have  elected  in  favor  of  it,  and 
will  be  ban-ed  of  her  dower,  or  stati;tory  portion  in  place  of  dower,  and 
in  many  states  of  her  distributive  share.  In  several  of  the  states  this 
formal  renunciation  of  the  will  must  be  made  within  six  months  after 
probate;  in  some  within  a  year.  I  have  indicated  the  period  in  connec- 
tion with  each  state*     The  following  states  belong  to  this  class: — 

Alabama. — Rev.  Code,  sees.  1928,  1929 :  Extends  to  dower  and  distribu- 
tive share ;  must  elect  within  one  year  from  probate.  See  Milliard  v.  Ben- 
ford's  Heirs,  10  Ala.  977,  990;  McGrath  v.  McGrath,  38  Ala.  246.»> 

§  494,    (a)    Right  to  Elect  Under  Crenshaw  v.  Carpenter,  69  Ala.  572,  44 

These     Statutes     is     Personal. — See  Am.  Rep.   539;   Sanders  v.   Wallace, 

post,  note  to  §  513.  118  Ala,  418,  24  South.  354. 

§  494,     ("»)     Alabama. — See,     also, 


939 


CONCERNING   ELECTION". 


§495 


§  495.  Classes  of  Testamentary  Dispositions. — So  many 
cases  have  arisen  upon  wills  containing  dispositions  by  the 
testator,  similar  in  their  operation,  that  the  English  and 
American  courts  have  been  enabled  to  make  a  classification 

Illinois.— Kurd's  Rev.  Stats.  1880,  p.  426,  sees.  10,  11 :  «  Extends  to 
dower;  election  must  be  within  one  year  after  letters  testamentary  are 
issued.  See  Haynie  v.  Dickens,  68  111.  267 ;  Sutherland  v.  Sutherland,  69 
111.  481 ;  Padfield  v.  Padfield,  78  111.  16 ;  Gauch  v.  St.  Louis,  etc.,  Ins.  Co., 
88  111.  255,  30  Am.  Rep.  554;  Mowbry  v.  Mowbry,  64  lU.  383;  Brown  v. 
Pitney,  39  111.  468;  Jennings  v.  Smith,  29  111.  116. 


§494,  (c)  Illinois. — Rev.  Stats. 
1889,  1893,  chap.  41,  §§  10,  11; 
Warren  v.  Warren,  148  111.  61,  22 
L.  E.  A.  393,  36  N.  E.  611  (inade- 
quacy of  provision  immaterial). 

§  494,  (d)  Indiana. — Burns'  Rev. 
Stats.  1901,  §§  2648,  2666.  See  Mil- 
ler V.  Stephens,  158  Ind.  438,  63 
N.  E.  847,  for  the  terms  and  con- 
struction of  these  statutes.  Under 
this  statute  the  widow  takes  under 
the  will  unless  within  a  year  from 
probate  she  files  a  declaration  of 
election  against  the  will:  Young  v. 
Biehl,  166  Ind.  357,  77  N.  E.  406 
(election  by  voluntarily  accepting 
provisions  of  will) ;  Whitesell  v. 
Strickler,  167  Ind.  602,  119  Am.  St. 
Eep.  524,  78  N.  E'.  845  (may  have 
action  after  expiration  of  the  year 
to  rescind  election  procured  by 
undue  influence)  ;  Stiers  v.  Mundy, 
174  Ind.  651,  92  N.  E.  374;  Stude- 
baker  Bros.  Mfg.  Co.  v.  De  Moss 
(Ind.  App.),  Ill  N.  E.  26  (no  elec- 
tion by  widower  when  no  provision 
made  for  him  by  will;  in  such  case 
he  takes  by  descent  notwithstand- 
ing an  attempted  election  in  favor 
of  the  will);  Bowers  v.  Lillis  (Ind.), 
115  N.  E.  930  (effect  of  election  to 
take  under  will) ;  Chaplin  v.  Leap- 
ley,  35  Ind.  App.  511,  74  N.  E.  546 


(nothing  left  to  wife  by  will  which 
husband  had  a  right  to  dispose  of, 
no  renunciation  necessary).  Under 
former  statute,  in  the  absence  of 
affirmative  acts  in  acceptance  of  the 
will,  she  was  deemed  to  elect  in 
opposition  to  the  will:  O'Brien  v. 
Knotts,  165  Ind.  308,  75  N.  E.  594; 
see  Dillman  v.  Fulwider,  57  luct. 
App.  632,  105  N.  E.  124. 

§494,  (e)  Iowa. — Present  statute, 
Code  of  1897,  §  3376  (for  former 
statute,  see  post,  note  to  §  513). 
In  the  absence  of  an  election  made 
as  provided  by  statute,  by  formal 
consent  in  court  within  six  months 
after  notice  to  elect,  the  widow  is 
conclusively  presumed  to  have  con- 
sented to  the  provisions  of  the  will, 
and  to  elect  to  take  thereunder:  In 
re  Hamilton's  Estate,  148  Iowa,  127, 
126  N.  W.  776;  Arnold  v.  Living- 
ston, 157  Iowa,  677,  1.39  N.  W.  927 
(no  limit  on  the  time  in  which 
notice  may  be  served);  Thorpe  v. 
Lyones,  160  Iowa,  415,  142  N.  W. 
82  (summing  up  results  of  pres- 
ent statute) ;  Watrous  v.  Watrous 
(Iowa),  163  N.  W.  439  (formal 
election  in  favor  of  will  though 
survivor  not  mentioned  therein). 
Where  the  widow  is  named  as 
devisee  in  the  will,  it  is  presumed, 


§495 


EQUITY    JURISPRUDENCE. 


940 


of  wills,  and  to  establish  a  number  of  special  rules  declar- 
ing what  particular  kind  of  testamentary  disposition  is 
and  what  is  not  inconsistent  with  a  claim  of  dower,  so  that 

Kansas. — Comp.  Laws  1879,  p.  1005,  sec.  6153 :  '  Extends  to  widow's 
statutory  portion ;  election  must  be  made  within  thirty  days  after  service 
of  a  citation  issued  to  her  after  the  probate.  See  Allan  v.  Huiinum,  15 
Kan.  625. 


Maine. — Rev.  Stats.  1871,  p.  757,  c.  103,  sec.  10:  Extends  to  dower; 
election  must  be  within  six  months  after  the  probate.  See  Allen  v.  Pray, 
12  Me.  138,  142;  Hastings  v.  Clifford,  32  Me.  132;  Dow  v.  Dow,  36  Me. 
211. 

Massachusetts. — Rev.  Stats.,  c.  60,  sec.  11;  Gen.  Stats.,  c.  92,  see.  24; 
Stats.  1854,  c.  428;  Stats.  1861,  c.  164 :*»  Extends  to  dower;  election  must 


unless  the  contrary  appears,  that 
the  testator  intended  the  devise  to 
be  in  lieu  of  her  statutory  rights: 
Code  1897,  §  3270;  Arnold  t.  Liv- 
ingston, 157  Iowa,  677,  139  N.  W. 
927.  In  the  absence  of  service  of 
notice  to  elect,  she  need  not  make  her 
election  within  any  particular  time, 
and  such  election  may  be  proved  by 
oral  declarations  on  her  part:  Arnold 
V.  Livingston,  157  Iowa,  677,  l39 
N.  W.  927. 

§  494,  (*)  Kansas. — Comp.  Laws 
1885,  c.  117,  sec.  41.  See  Moore  v. 
Herd,  76  Kan.  826,  93  Pac.  157 
(statute  applies  equally  to  widow 
and  to  surviving  husband);  Ashel- 
ford  V.  Chapman,  81  Kan.  312,  105 
Pac.  534  (in  case  of  election  to  take 
under  statute  of  descents,  cannot 
enlarge  rights  by  appeal  to  the 
will).  Under  the  present  statute 
(Gen.  Stats.  1909^  §  9819),  a  failure 
to  elect  is  equivalent  to  an  election 
to  take  against  the  will;  Williams 
V.  Campbell,  85  Kan.  631,  118  Pac. 
1074.  The  statutes  are  construed 
to  mean  that  an  election  in  favor  of 
the  will  bars  the  widow  and  her 
heirs  from  inheriting  property  of 
the    husband    undisposed    of    by    the 


will:  Compton  v.  Akers,  96  Kan. 
229,  150  Pac.  219. 

§494,  (s)  KentucTcy.—Kj.  Stats., 
§§  1404,  2136.  For  the  terms  and 
construction  of  these  statutes  see 
Bayes  v.  Howes,  24  Ky.  L.  Eep.  281, 
G8  S.  W.  449.  See,  also,  Mercer  v. 
Smith,  32  Ky.  Law  1003,  107  S.  W. 
1196  (if  widow  does  not  make  her 
election  within  a  year,  she  is 
deemed  to  have  waived  her  dower 
right  and  to  have  elected  to  take 
under  the  will) :  Smith  v.  Perkins, 
148  Ky.  387,  146  S.  W.  758  (same); 
Harding  v.  Harding,  140  Ky.  277, 
Ann.  Cas.  1912B,  526,  130  S.  W. 
1098  (if  survivor  dies  without  re- 
nouncing the  will,  his  or  her  per- 
sonal representative  cannot  elect)  ; 
Landers  v.  Landers,  151  Ky.  206, 
Ann.  Cas.  1915A,  223,  151  S.  W.  386 
(where  the  devise  to  the  wife  was 
of  property  which  the  husband 
could  not  dispose  of  by  will,  her 
failure  to  renounce  the  will  within 
the  statutory  period  does  not 
amount  to  an  election  in  favor  of 
the  will). 

§  494,  (h)  MassacMsetts.  —  Pub. 
Stats.,  c.  127,  sec.  20.  See,  also, 
Matthews    v.    Matthews,     141    Mass. 


941 


CONCERNING   ELECTION. 


§495 


the  widow  shall  or  shall  not  be  put  to  an  election  thereby. 
The  most  common  and  important  of  these  testamentary 
forms,  and  of  the  special  rules  concerning  them,  will  now 
be  stated. 

be  made  within  six  months  after  probate.  See  Atherton  v.  Corliss,  101 
Mass.  40,  44;  Reed  v.  Dickerman,  12  Pick.  146;  Pratt  v.  Felton,  4  Cush. 
174;  Delay  v.  Vinal,  1  Met.  57;  Adams  v.  Adams,  5  Met.  277. 

Maryland.— Rev.  Code  1878,  p.  475,  sees.  227-230 :  »  Extends  to  dower 
and  to  disti-ibutive  share;  election  must  be  made  within  six  months  ai'ier 
letters  testamentary  are  issued.  See  Knighton  v.  Young,  22  Md.  359; 
Hilleary  v.  Hilleary's  Lessee,  26  Md.  274 ;  Gough  v.  Manning,  26  Md.  347, 
366 ;  Lynn  v.  Gephart,  27  Md.  547 ;  Hinckley  v.  House  of  Refuge,  40  Md. 
461 ;  Pindell  v.  Pindell,  40  Md.  537. 

Michigan.— 2  Comp.  Laws  1871,  p.  1362,  sees.  4286,  4287 :  i  Extends  to 
dower;  widow  is  deemed  to  have  elected  in  favor  of  the  will,  unless  Avithin 
one  year  after  her  husband's  death  she  begin  proceedings  to  recover  her 
dower. 

Minnesota. — 1  Bissell's  Stats,  at  Large,  p.  628,  sees.  152,  153 :  ^  Provi- 
sions same  as  in  Michigan;  but  in  1875  dower  was  abolished,  and  these 
provisions  repealed. 


511,  6  N.  E.  776;  Downey  v.  King, 
201  Mass.  59,  87  N.  E.  468.  The 
provision  that  the  widow  shall  not  be 
entitled  to  dower  in  addition  to  the 
provisions  of  her  husband's  will  is 
held  not  to  apply  to  lands  of  a  resi- 
dent of  Massachusetts  situated  in  a 
foreign  state:  Staigg  v.  Atkinson, 
144  Mass.  567,  12  N.  E.  354. 

§494,  (1)  Maryland.— Co^Q  1888, 
art.  93,  sees.  291-294.  That  a 
widow  electing  to  take  in  opposition 
to  the  will  cannot  claim  to  have  her 
statutory  estate  enlarged  by  virtue  of 
a  provision  in  the  will,  see  Pacholder 
v.  Kosenheim,  129  Md.  455,  L.  R.  A. 
1917D,  464,  99  Atl.  672,  (her  share 
is  to  be  ■  computed  as  though  her 
husband  died  intestate;  she  cannot 
take  advantage  of  a  clause  in  the 
will  directing  conversion  to  claim 
one  half  of  the  resulting  personalty). 

§  494,  (J)  Michigan.  —  Howell's 
Stats.   1882,  sees.   5750,   5751;    Comp. 


Laws,  §  9064;  Stearns  v.  Perrin,  130 
Mich.  456,  90  N.  W.  297.  See,  also, 
Eddy  v.  Eddy,  168  Fed.  590,  93  C.  C. 
A.  586  (statutory  limitation  of  one 
year  does  not  apply  when  election 
procured  by  fraud,  until  discovery  of 
the  fraud. 

§494,  (k)  Minnesota.— ReY.  Stats. 
1851,  c.  49,  sec.  18;  Gen.  Stats. 
1866,  c.  48,  sec.  18.  By  the  Laws  of 
1875,  c.  40,  abolishing  dower,  an  es- 
tate of  inheritance  in  lieu  of  dower 
is  given  to  the  widow,  and  the  rules 
governing  election  between  this 
statutory  estate  and  provisions 
made  for  the  wddow  by  the  will  of 
her  husband  are  the  same  as  the 
general  rules  of  equity  governing 
election  in  cases  of  dower.  Unless 
the  contrary  appears  from  the  will, 
the  presumption  is,  that  a  legacy  is 
intended  as  a  bounty,  and  not  as  a 
satisfaction  of  the  statutory  inter- 
est of  the  wife:   Estate  of  Gotzian, 


§  496  EQUITY    JUEISPRUDENCE.  942 

§  496.  Express  Declaration. — If  the  testator,  in  express 
terms,  declares  that  any  gift  which  he  makes  to  his  widow, 

Mississippi.— Rev.  Code  1871,  p.  254,  sees.  1286,  1287:1  Extends  to 
dower  and  to  widow's  share  of  personal  estate;  election  must  be  made 
within  six  months  after  probate. 

Nebraska. — Gen.  Stats.  1873,  p.  278,  sees.  17,  18:  Extends  to  dower; 
election  is  deemed  to  be  made  in  favor  of  the  will,  unless  within  one  year 
after  her  husband's  death  the  widow  begins  proceedings  to  recover  her 
dower.™ 

North  Carolina. — Battle's  Rev.  1873,  p.  840,  sec.  6:  ^  Extends  to  dower; 
election  must  be  made  within  six  months  after  probate.  See  Craven  v. 
Craven,  2  Dev.  Eq.  338 ;  Bray  v.  Lamb,  2  Dev.  Eq.  372,  25  Am.  Dec.  718. 

Ohio. — 2  Rev.  Stats.  1879,  p.  1433,  sec.  5963:  Extends  to  dower;  elec- 
tion must  be  made  within  one  year  after  service  of  a  citation  upon  the 
widow  for  that  purpose.  See  Stilley  v.  Folger,  14  Ohio,  610,  646;  Luigart 
v.  Ripley,  19  Ohio  St.  24;  Baxter  v.  Boyer,  19  Ohio  St.  490;  Bowen  v. 
Bowen,  34  Ohio  St.  164;  Thompson  v.  Hoop,  6  Ohio  St.  480;  Stockton  v. 
Wooley,  20  Ohio /St.  184;  Davis  v.  Davis,  11  Ohio  St.  386;  Jennings  v. 
Jennings,  21  Ohio  St.  56. 

Oregon. — Gen.  Laws  1872,  p.  586,  §§18,  19 :  **  Extends  to  dower;  widow 
is  deemed  to  have  elected  in  favor  of  the  will,  unless  within  one  year  after 
the  death  of  her  husband  she  begins  proceedings  to  recover  her  dower. 

Pennsylvania. — Brightly's  Purdon's  Dig.,  p.  362,  sees.  4—6 :  *  Extends 
to  dower;  after  one  year  from  the  husband's  death  a  citation  may  be  issued 
to  the  widow,  and  she  must  then  elect.  See  Anderson's  Appeal,  36  Pa.  St. 
476;  Melizet's  Appeal,  17  Pa.  St.  449,  55  Am.  Dec.  573;  Cauffman  v. 
Cauffman,  17  Serg.  &  R.  16;  Heron  v.  Hoffner,  3  Rawle,  393;  Reed  v. 
Reed,  9  Watts,  263;  Leinaweaver  v.  Stoever,  1  Watts  &  S.  160;  Borland 
V.  Nichols,  12  Pa.  St.  38,  51  Am.  Dec.  576. 

34   Minn.    159,   57   Am.   Rep.   43,   24  §494,    (n)    North  Carolijia.  —  Code 

N.  W.  920.     That  a  widow  electing  1883,   sec.   2108.     See   Lee   v.    Giles, 

in  favor  of  tlie  will  cannot  take  by  161  N.  C.  541,  77  S.  E.  852. 

Inheritance   any   part   of   the   estate  §  494,     (o)     Oregon.  —  Hill's    Laws 

as    to    which    the    testator    died    in-  1887,  sees.   2971,   2972. 

testate,    see    Mechling    v.    McAllister,  §  494,    (p)    Pennsylvama.  —  Bright- 

135  Minn.  357,  L.  R.  A.  1917C,  504,  ly's     Purdon's     Dig.,     ed.     of     1883, 

160  N.  W.  1016.  p.   632.     See   In  re   Powell's  Estate, 

§494,    (1)   Missi.ss'ippi.— 'Code   1880,  225    Pa.    518,    74    Atl.    421    (widow 

sees.  1172,  1174.  limited  to  a  choice  between  the  two 

§494,     (n»)     Neiraslca.    —    Dower  provisions;    cannot    accept    the    will 

abolished,  1889.     See  Gaster  v.  Gas-  in    part    and    demand    part    of    her 

ter's  Estate,  90  Neb.  529,  134  N.  W.  statutory   rights). 
235   (as  to  election  in  behalf  of  in- 
sane widow). 


943 


CONCERNING   ELECTION. 


§496 


whether  legacy  or  devise,  shall  be  in  lieu  of  her  dower,  she 
is,  of  course,  required  to  elect  between  the  will  and  her 

Tennessee. — Code  1871,  vol.  2,  p.  1077,  see.  2404.  Extends  to  dower; 
election  must  be  made  within  one  year  after  probate.  See  Reid  v.  Camp- 
bell, Meigs,  378,  388;  Malone  v.  Majors,  8  Humph.  577,  579;  MeClung  v. 
Sneed,  3  Head,  218,  223;  Waddle  v.  Terry,  4  Cold.  51,  54;  Demoss  v. 
Demoss,  7  Cold.  256,  258.« 

Wisconsin.— 2  Tayloi-'s  Stats.  1871,  p.  1160,  sees.  18,  19 : '  Extends  to 
dower;  widow  is  deemed  to  have  elected  in  favor  of  the  will,  unless  within 
one  year  after  probate  she  begins  proceedings  to  recover  her  dower. 

Second  Class. — In  all  the  states  of  this  class,  any  devise  of  land  by  the 
husband  to  his  widow  is  deemed  to  be  in  lieu  of  dower,  and  puts  her  to 
an  election,  unless  the  will  expressly  shows  his  intention  that  she  shall 
receive  both.  A  bequest  of  personal  property'  is  not  so  deemed,  and  does 
not  put  the  widow  to  an  election,  unless  it  is  expressly  given  in  lieu  of 
her  dower,  or  unless  the  testator's  intention  that  it  shall  be  instead  of 
dower  is  plainly  manifested  from  the  provisions  of  the  will.  When  thus 
required  to  elect,  the  widow's  election  must  be  made  in  a  formal  manner, 
by  a  writing,  and  within  certain  prescribed  times.  The  prescribed  periods 
of  time  within  which  the  election  must  be  made  are  mentioned  in  connec- 
tion with  each  state  of  the  class.  The  following  states  compose  this 
class : — 


§494,  (a)  Tennessee. — Shan.  Code, 
§  4146.  See  Eowlett  v.  Rowlett, 
116  Tenn.  458,  95  S.  W.  821;  Battle 
V.  Claiborne,  133  Tenn.  286,  180 
S.  W.  584  (on  exceptional  facts, 
widow  not  called  upon  to  elect). 

West  Virginia.— €oie  1906,  §  3177. 
When  any  provision  is  made  for  a 
wife  in  the  husband's  will,  she  may 
renounce  the  provision  within  one 
year  after  probate,  either  in  person 
before  the  court,  or  by  writing  re- 
corded in  the  court;  otherwise  she 
shall  have  no  more  than  is  given  her 
by  the  will:  See  Freeman  v.  Free- 
man, 61  W.  Va.  682,  11  Ann.  Cas. 
1013,  57  S.  E.  292. 

§  494,  (r)  Wisconsin.  —  Laws  of 
1877,  c.  106;  Sanborn  and  Berry- 
man's  Stats.  1889,  sec.  2172.  Under 
the  laws  of  1877  (c.  106),  if  a  will 


makes  provision  for  the  widow,  she 
is  excluded  from  any  share  in  either 
the  real  or  personal  estate  of  the 
testator  left  undisposed  of  by  the 
will,  by  virtue  of  the  right  of  dower 
or  under  the  statute  of  distribu- 
tions, unless  she  duly  renounces  the 
provisions  so  made  for  her  in  the 
will:  Hardy  v.  Scales,  54  Wis.  452, 
11  N.  W.  590.  In  Wilber  v.  Wilber, 
52  Wis.  298,  9  N.  W.  163,  it  is  held 
that  the  statutory  right  of  election 
cannot  be  taken  from  the  widow 
either  by  the  will,  or  by  a  deed  of 
release  executed  by  her  to  her  hus- 
band during  coverture.  See,  also, 
Leach  v.  Leach,  65  Wis.  291,  26  N,  W. 
754;  Melms  v.  Pabst  Brewing  Co.,  93 
Wis.  140,  66  N.  W.  244;  Villey  v. 
Lewis,  113  Wis.  618,  88  N.  W.  1021. 


§  496  EQUITY   JUEISPKUDENCB.  944 

dower  right,  both  at  law  and  in  equity;  and  tlie  value  of 
the  gift  in  proportion  to  that  of  her  dower,  whether  large 

Arkansas.— GantVs  Dig.,  sees.  2233,  2235,  2236:*  Where  a  devise  is 
simply  given  to  tiie  widow,  she  must  elect  against  the  will  within  eighteen 
months  after  her  husband's  death,  or  else  she  is  regarded  as  having  elected 
in  favor  of  the  will.  Also,  in  Gantt's  Dig.,  sec.  2223,*  when  any  provi- 
sion is  given  to  her  expressly  in  lieu  of  her  dower,  she  must  elect  against 
the  will  within  one  year  after  her  husband's  death,  by  commencing  pro- 
ceedings to  recover  her  dower. 

Delaware. — Rev.  Code  1852-74,  p.  534,  sees.  5,  6,  7:  Widow  must  elect 
against  the  will  within  thirty  days  after  service  of  a  citation  on  her.  See 
Chandler  v.  Woodward,  3  Harr.  (Del.)  428. 

Georgia. — Code  1873,  p.  305,  sees.  1764,  1765:  Widow  must  elect  when 
land  is  devised  to  her,  but  the  time  of  making  the  election  and  its  mode 
are  not  prescribed.  See  Tooke  v.  Hardeman,  7  Ga.  20;  Raines  v.  Corbin, 
24  Ga.  185 ;  Worthen  v.  Pearson,  33  Ga.  385,  81  Am.  Dec.  213 ;  Clayton  v. 
Akin,  38  Ga.  320,  95  Am.  Dec.  393 ;  Gibbon  v.  Gibbon,  40  Ga.  562.n 

Missouri. — 1  Wagner's  Stats.  1870,  p.  541,  sees.  15,  16:  Widow  must 
elect  in  writing  within  one  year  after  probate  to  waive  the  devise,  or  she 
is  deemed  to  have  elected  in  favor  of  the  will.  See  Pemberton  v.  Pember- 
ton,  29  Mo.  408;  Brant  v.  Brant,  40  Mo.  266.^ 

New  Jersey. — Rev.  Stats.  1877,  p.  322,  sec.  16:  Any  devise  is  a  bar  of 
dower,  unless  the  widow  elects  to  waive  it  within  six  months  after  pro- 
bate. See  Stark  v.  Hunton,  1  N.  J.  Eq.  216;  Norris  v.  Clark,  10  N.  J. 
Eq.  51;  Adamson  v.  Ayres,  5  N.  J.  Eq.  349;  Colgate  v.  Colgate,  23  N.  J. 

§  494,      («)     Arlcansas.  —  Dig.      of  accepted   by  her  at  the  time,  in  lieu 

Stata.  1884,  sees.  2594,  2596,  2597.  of  dower,  will  not  have  that  effect, 

§  494,     (t)     Dig.    of    Stats.     1884,  unless    ratified    after   the    husband's 

sec.  2284.  death:    Butts    v.    Trice,    69    Ga.    74. 

§  494,     (n)     Georgia. — In    Forester  As  to  her  election  to  take  a  child's 

V.  Watford,  67  Ga.  508,  and  Aldridge  portion  in  place  of  the  provisions  of 

T.  Aldridge,  79  Ga.  71,  3  S.  E.  619,  the    will,    see    Falligant   v.    Barrow, 

it  was  held  that  before  the  right  to  133  Ga.  87,  65  S.  E.  149. 

dower   can   be   defeated,  the  widow  §  494,     (v)    Missouri.— As    to    per- 

must   do   some   act   showing  her   ac-  sonal    property,    the    rule    of    equity 

ceptance    of    the    provision    of    the  remains  in  full  force  and  effect,  and 

will.     As    to    what    will    amount    to  wife   takes   both   legacy   and   dower 

Buch    an    election,    see    Churchill    v.  right   unless   will    expressed   intention 

Bee,  66  Ga.  621;  Johnston  v.  Duncan,  to  contrary:    Sparks  v.  Dorrell,   151 

67  Ga.   61.     The  wife  cannot  be   put  Mo.   App.   173,   131   S.   W.    761;   and 

to  her  election  until  after  the  death  see    Zook    v.    Welty,    156    Mo.    App. 

of    her    husband.     Consequently,     a  703,  137  S.  W.  989. 
deed  from  the  husband  to  his  wife, 


945  CONCERNING   ELECTION.  §  497 

or  small,  is  entirely  immaterial. ^  ^  In  all  the  subsequent 
classes  the  will  contains  no  such  express  declaration. 

§  497.  Devise  of  a  Part  to  the  Widow  and  of  the  Rest  to 
Others. — Where  a  testator  simply  devises  to  his  widow  a 
part  of  the  lands  which  are  subject  to  dower,  with  or  with- 
out any  additional  pecuniary  provision  by  way  of  legacy, 
and  gives  the  rest  of  his  real  estate  to  others  to  be  enjoyed 
by  such  devisees  for  their  own  benefit, — that  is,  not  to 
trustees  upon  trust  to  sell  such  residue, — it  is  well  settled, 
both  in  England  and  in  this  country,  that  the  disposition 
made  by  the  testator  is  not  inconsistent  with  his  widow's 
claim  for  dower,  and  no  necessity  for  an  election  is  cre- 
ated.^    Where  the  devise  to  a  third  person,  after  a  pro- 

Eq.  372;  Morgan  v.  Titus,  3  N.  J.  Eq.  201;  English  v.  English,  3  N.  J.  Eq. 
504,  29  Am.  Dec.  730;  White  v.  White,  16  N.  J.  L.  202,  31  Am.  Dec. 
232,  Thompson  v.  Egbert,  17  N.  J.  L.  459;  Van  Arsdale  v.  Van  Arsdale, 
26  N.  J.  L.  404.'^ 

§  496,  1  See  many  of  the  cases  cited  in  the  preceding  notes,  under 
§493. 

§497,  1  Lawrence  v.  Lawrence,  2  Vem.  365;  2  Freem.  234,  235;  3 
Brown  Pari.  C,  Tomlins's  ed.,  483;  Lemon  v.  Lemon,  8  Vin.  Abr.,  p.  366, 
pi.  45;  French  v.  Davies,  2  Ves.  572;  Strahan  v.  Sutton,  3  Ves.  249;  Lord 
Dorchester  v.  Earl  of  Effingham,  Coop.  319;  Brown  v.  Pariy,  2  Dick.  685; 
Licledon  v.  Northcote,  3  Atk.  430,  436;  Gibson  v.  Gibson,  1  Drew.  42; 
Lawrence  v.  Lawrence,  2  Vern.  365,  2  Freem.  234,  235,  3  Brown  Pari.  C, 

§  494,  (w)  New  Jersey. — ^See,  also,  shall  be  accepted  and  received  in 
Stewart  v.  Stewart,  31  N.  J.  Eq.  lieu  of  dower,  and  of  all  claims  the 
398;  Cooper  v.  Cooper,  56  N.  J.  Eq.  widow  may  have  against  the  testa- 
48,  38  Atl.  198;  Hill  v.  Hill,  62  N.  tor's  estate  as  his  widow,  it  is  held 
J.  L.  442,  41  Atl.  943;  Martin  v.  that  the  declaration  was  not  simply 
Martin,  80  N.  J.  Eq.  359,  84  Atl.  for  the  benefit  of  the  other  devisees 
G19;  Moore  v.  Moore,  84  N.  J.  Eq.  and  legatees,  but  was  in  ease  of 
39,  92  Atl.  94S'.  In  Griggs  v.  the  entire  estate,  and  barred  the 
Veghte,  47  N.  J.  Eq.  179,  it  is  held  widow  from  any  other  share  thereof, 
that  an  intention  to  make  an  equal  and  consequently  she  was  not  en- 
division  of  the  testator's  estate,  not  titled  to  share  under  the  statute  of 
otherwise  disposed  of,  between  the  distributions  in  a  lapsed  legacy:  In 
wife  and  other  beneficiaries  is  in-  re  Bullard,  96  N.  Y.  499,  4S'  Am. 
consistent  with  her  taking  dower.  Rep.  646,  disapproving  Pickering  v. 

§  496,   (a)   Where  the  provision  of  Stanford,  2  Ves.  272,  581,  3  Ves.  332, 

the    will    expressly    states    that    it  492. 
1—60 


§  497  EQUITY   JURISPRUDENCE.  946 

vision  made  for  the  widow,  is  specific  of  a  certain  tract  of 
lands  specifically  defined  and  identified,  a  variation  from 
this  rule  has  been  suggested  and  even  adopted  in  some 
American  cases.  Under  ordinary  circumstances  the  specific 
nature  of  the  devise  does  not  prevent  the  operation  of  the 
rule;  but  when  the  specific  devise  is  for  the  benefit  of  one 

Tomlins's  ed.,  483,  is  the  leading  case.  The  testator  devised  part  of  his 
real  estate  to  his  wife  during  her  widowhood,  and  also  gave  her  several 
legacies,  both  specific  and  general.  The  residue  of  his  real  estate  was 
devised  to  trustees,  in  trust,  for  specified  persons.  Lord  Somers  held  that 
the  widow  was  bound  to  elect,  but  his  decision  was  reversed  by  Lord 
Keeper  Wright,  and  that  decree  was  confirmed  by  Lord  Chancellor  Cowper 
and  the  house  of  lords,  and  it  was  settled  that  she  could  claim  both  her 
dower  and  the  benefits  given  by  the  will.  The  American  decisions  are 
equally  unanimous  and  strong:  Lefevre  v.  Lefevre,  59  N.  Y.  435;  Leonard 
V.  Steele,  4  Barb.  20;  Bull  v.  Church,  5  Hill,  207,  2  Denio,  430,  43 
Am.  Dec.  754;  Lewis  v.  Smith,  9  N.  Y.  502,  61  Am.  Dec.  706;  Mills  v. 
Mills,  28  Barb.  454;  Jackson  v.  Churchill,  7  Cow.  287,  17  Am.  Dec.  514; 
Havens  v.  Havens,  1  Sand.  Ch.  325,  329;  Evans  v.  Webb,  1  Yeates,  424, 
1  Am.  Dec.  308;  Pickett  v.  Peay,  3  Brev.  545,  6  Am.  Dec.  594;  Wiseley 
V.  Fmdlay,  3  Rand.  361,  15  Am.  Dec.  712 ;  Brown  v.  Coldwell,  1  Speer's 
Eq.  322,  325;  Brown  v.  Brown,  55  N.  H.  106;  but  see,  per  contra,  Ailing 
V.  Chatfield,  42  Conn.  276 ;  Apperson  v.  Bolton,  29  Ark.  418.  In  Lefevre 
V.  Lefevre,  59  N.  Y.  435,  the  testator  gave  one  third  of  his  estate,  real 
and  personal,  to  his  widow,  one  third  to  a  charitable  society,  then  certain 
legacies,  and  the  residue  to  his  widow,  to  be  disposed  of,  as  she  saw  fit, 
for  charitable  purposes.  She  was  not  put  to  an  election.  In  Leonard  v. 
Steele,  4  Barb.  20,  a  husband  died  intestate,  leaving  his  widow  and  a  son. 
The  son,  dying,  devised  to  his  mother  part  of  the  real  estate  which  thus 
descended  to  him,  and  the  rest  to  others.  The  widow  was  held  entitled 
to  dower  in  all  the  real  estate  of  her  husband,  and  also  to  the  land  devised 
to  her  in  fee  by  her  son.  In  Mills  v.  Mills,  28  Barb.  454,  the  testator 
directed  that  one  third  of  his  estate  should  be  set  apart  and  invested  for 
the  use  of  his  widow  during  her  life,  and  on  her  death  should  be  divided 
among  his  children;  the  residue  to  be  divided  among  his  children.  The 
widow  was  held  entitled  to  her  dower  in  addition  to  the  testamentary  gift. 
In  Jackson  v.  Churchill,  7  Cow.  287,  17  Am.  Dec.  514,  the  testator  devised 
to  his  widow  his  dwelling-house  and  part  of  his  garden,  and  gave  her 
legacies.  He  devised  his  farm  to  his  sons.  The  widow  was  held  entitled 
to  dower  in  the  farm,  as  well  as  to  the  devise  and  legacy  given  by  the 
will.     These  examples  amply  illustrate  the  rule  as  stated  in  the  text. 


947  CONCERNING  ELECTION.  §  498 

whom  the  testator  is  bound  to  support,  the  rule  may  not 
apply.  2 

§  498.  Devise  to  the  Widow  for  Life. — As  a  particular 
instance  of  the  rule  stated  in  the  preceding  paragraph,  a  de- 
vise to  the  widow  of  a  certain  portion  of  the  real  and  per- 
sonal estate,  or  either,  for  her  life,  and  a  devise  of  the  rest 
of  the  lands  to  third  persons,  clearly  does  not  raise  a  case 
for  an  election  between  the  testamentary  gift  and  dower 
in  the  residue^-  A  devise  of  a  certain  portion  of  the  tes- 
tator's lands,  or  of  all  his  lands,  to  his  widow  for  her  life 
or  during  widowhood,  presents  another  question:  whether 
such  a  disposition  is  inconsistent  with  her  claim  of  dower 
in  the  lands  thus  devised  to  her  for  life,  or  whether  she  can 
both  accept  the  testamentary  estate  and  also  assert,  if 
needful,  her  dower  right  therein.  Upon  this  question  there 
is  a  direct  conflict  among  the  American  decisions.  Accord- 
ing to  one  class  of  cases,  this  form  of  gift  is  completely 
governed  by  the  rule  stated  in  the  last  preceding  para- 
graph ;  no  inconsistency  exists,  the  widow  is  not  obliged  to 
elect,  but  may  take  the  life  interest  given  by  the  will,  and 
also  claim  her  dower  in  the  same  lands. ^     Another  group 

§  497,  2  Under  ordinary  circumstances,  a  specific  devise  to  a  third  per- 
son certainly  makes  no  difference  with  the  operation  of  the  rule  stated  in 
the  text,  that  no  case  for  an  election  is  raised:  Strahan  v.  Sutton,  3  Ves. 
249;  Jackson  v.  Churchill,  7  Cow.  287,  17  Am.  Dec.  514;  Kennedy  v. 
Nedrow,  1  Dall.  415,  418.  But  if  the  testator,  after  giving  a  portion  of 
his  property  to  his  widow,  makes  a  specific  devise  to  a  person  whom  he 
is  bound  to  support  or  maintain, — as,  for  example,  to  his  infant  child 
who  is  otherwise  unprovided  for,  and  the  devise  is  not  more  than  enough 
for  its  support, — it  has  been  said  that  such  a  disposition  is  inconsistent 
with  the  widow's  claim  of  dower  in  the  land  so  specifically  bestowed.  See 
Herbert  v.  Wren,  7  Cranch,  370,  378,  per  Marshall,  C.  J.;  Ailing  v.  Chat- 
field,  42  Conn.  276. 

§498,  iBuU  V.  Church,  5  Hill,  207,  2  Denio,  430,  43  Am.  Dec.  754; 
LeAvis  V.  Smith,  9  N.  Y.  502,  61  Am.  Dec.  706;  Mills  v.  Mills,  28  Barb. 
454;  Sandford  v.  Jackson,  10  Paige,  266;  Jackson  v.  Churchill,  7  Cow. 
287,  17  Am.  Dec.  514;  Havens  v.  Havens,  1  Sand.  Ch.  325. 

§498,  2  Bull  V.  Church,  5  Hill,  207,  2  Denio,  430,  43  Am.  Dec.  754; 
Sandford  v.  Jackson,  10  Paige,  266;  Lewis  v.  Smith,  9  N.  Y.  502,  61 


§  498  EQUITY   JURISPRUDENCE.  948 

of  cases  rejects  this  view,  holds  that  the  life  estate  under 
the  will  and  the  dower  right  in  the  same  lands  are  neces- 
sarily inconsistent,  and  therefore  that  the  widow  must  elect 
between  the  two.     Her  election  in  favor  of  the  will  by  ac- 

Am.  Dec.  706;  Mills  v.  Mills,  28  Barb.  454;  Mitteer  v.  Wiley,  34  Iowa, 
214.*  The  courts  of  New  York  have  adopted  this  construction  of  the 
rule  in  the  most  positive  manner.  In  Bull  v.  Church,  5  Hill,  207,  2 
Denio,  430,  43  Am.  Dec.  754,  the  testator  gave  all  his  property,  real  and 
personal,  to  his  wife  during  widowhood,  and  then  to  his  children.  She 
enjoyed  the  provision  made  by  the  will  for  a  while,  and  then  married  a 
second  time.  She  was  held  entitled  to  dower  in  all  the  lands,  as  her  in- 
terest under  the  will  had  ended.  In  Lewis  v.  Smith,  9  N.  Y.  502,  61 
Am.  Dec.  706,  the  testator  gave  his  wife  the  use  of  all  his  estate,  real 
and  personal,  during  her  life,  and  empowered  his  executor  to  sell  the 
real  estate,  and  pay  the  proceeds  to  his  wife  for  her  enjoyment  during 
life.  The  acceptance  of  this  provision  was  held  not  inconsistent  with  her 
enforcement  of  her  dower  right.  In  Saudford  v.  Jackson,  10  Paige,  266, 
testator  devised  all  his  property,  real  and  personal,  to  his  wife  and  to  two 
others,  to  be  held  for  her  use  as  long  as  she  should  remain  his  widow,  and 
until  his  youngest  child  should  become  of  age,  and  then  a  division  was  to 
be  made.  She  enjoyed  the  i3rovision  made  by  the  will  for  a  while,  and 
then  married.  Held,  that  no  case  for  an  election  had  arisen,  and  she  was 
entitled  to  dower  in  all  her  husband's  lands.** 

§  498,     (a)    See,    also,    Hunter    v.  disturbance,    one    which    under    the 

Hunter,   95    Iowa,    728,   58   Am.    St.  rules  of  §§  499  et  seq.  of  the  text 

Rep.  455,  64  N.  W.  656;  Howard  v.  would   not   create    an   inconsistency, 

Watson,  76  Iowa,  229,  41  N.  W.  45;  may  have  that  effect  under  the  Iowa 

Bare  v.  Bare,  91  Iowa,  143,  59  IST.  W.  decisions.     It    is    admitted    by    the 

20;  Watson  v.  Watson,  98  Iowa,  132,  opinions  in  some  of  the  later  cases 

67  N.  W.  83;  Sutherland  v.  Suther-  that    their    rulings    are    not    wholly 

land,  102  Iowa,  535,  63  Am.  St.  Rep.  reconcilable:    See    Parker    v.    Parker, 

477,  71  N.  W.  424;  Estate  of  Proc-  129  Iowa,   600,   106  N.  W.  8;   Mohn 

tor,    103   Iowa,   232,    72   N.   W.   516.  v.  Mohn,   148  Iowa,  288;  126  N.  W. 

See,    also,    W'arner    v.    Hamill,  '  134  1127;    In    re    Steven's    Estate,    163 

[owa,  279,  111  N.  W.  939;  Archer  v.  Iowa,  364,  144  N.  W.  644. 
Barnes,    149    Iowa,    658,    128    K    W.  §498,   (b)   In  Estate  of  Zahrt,  94 

969;    Parker    v.    Parker,    155    Iowa,  N.  Y.  605,  the  testator  devised  to  his 

65,  135  N.  W.  71;  Thorpe  v.  Lyones,  wife  during  her  life  "the  rents,  in- 

160  Iowa,  415,   142   N.  W.  82.     But  come,   interest,   use,   and   occupation 

if   awarding  to   the   widow  her  dis-  of    all    his    estate,"    upon    condition 

tributive    share    would    disturb    the  that  she  keep  the  buildings  and  per- 

other    provisions    of    the   will,    she    is  sonal  property  insured,  pay  all  taxes 

put    to   her   election;    and   it   would  and  assessments,  and  keep  the  estate 

seem    that    a    comparatively    slight  in    good    repair.     This    requirement 


949  CONCERNING    ELECTION.  §  499 

cepting  its  provision,  according  to  this  construction,  de- 
feats any  subsequent  claim  for  dower  in  the  lands  devised. ^ 
The  conclusion  reached  by  the  former  series  of  decisions 
seems  to  be  in  agreement  with  the  settled  doctrines  of  equity 
jurisprudence. 

§  499.    Devise  in  Trust  to  Sell,  or  With  a  Power  of  Sale. 

It  is  also  a  settled  rule,  both  in  England  and  in  the  Amer- 
ican states,  where  statutes  have  not  interfered,  that,  after 
a  legacy,  annuity,  or  other  provision  made  for  the  wife,  a 
devise  of  lands  which  are  subject  to  dower,  or  of  all  the 
testator's  lands,  to  trustees,  on  trust,  to  sell,  or  with  power 

§  498,  3  Hamilton  v.  Biickwalter,  2  Yeates,  389,  392 ;  1  Am.  Dec.  350 ; 
Stark  V.  Hunton,  1  N.  J.  Eq.  217,  224,  225;  Smith  v.  Bone,  7  Bush,  367; 
Wilson  V.  Hayne,  Cheves  Eq.  37,  40;  Caston  v.  Caston,  2  Rich.  Eq.  1; 
Cunningham  v.  Shannon,  4  Rich.  Eq.  135.  Some  of  these  cases  seem  to 
have  turned,  in  part  at  least,  upon  local  statutes.  Laying  out  of  view 
the  effect  of  any  statutes,  in  my  opinion  the  first-mentioned  series  of  cases 
is  based  upon  the  general  principle  as  settled  by  the  courts,  rather  than 
the  second  group.  There  does  not  seem  to  be,  in  accordance  with  that 
principle,  any  necessary  inconsistency  between  such  a  devise  to  the  widow 
and  her  claim  of  dower  in  the  same  lands,  which  would,  of  course,  only 
be  made  where  the  testamentary  gift  had  failed.  It  is  clear  that  there 
is  no  such  inconsistency  between  her  claim  of  dower  and  a  devise  of  lands 
to  third  persons,  either  for  their  lives  or  in  fee ;  that  is,  the  gift  itself, 
for  life  or  in  fee,  does  not  create  the  antagonism  required  by  the  rule. 
It  is  said  that  a  life  estate  in  lands  directly  conferred  by  the  will  pre- 
cludes the  notion  of  another  legal  life  estate  in  the  same  lands  held  by 
the  same  person.  It  may  be  conceded  that  at  law  two  such  estates  in  the 
same  lands  cannot  exist  at  the  same  time  vested  in  the  same  person.  In 
equity,  however,  this  legal  rule  does  not  prevail.  Equity  admits  the  possi- 
bility of  two  estates  co-existing  in  the  same  person,  and  will  always  keep 
both  the  simultaneous  estates  alive  whenever  such  a  result  is  necessary  to 
protect  the  equitable  interests  and  rights  of  the  party. 

was  held  to  be  inconsistent  with  her  put  to  an  election.     The  cases  chiefly 

dower  right,  and  put  her  to  her  elee-  relied    upon    were    from    states    enu- 

tion.     In  Estate  of  Gotzian,  34  Minn.  merated    in    §  494,    ante,    where    the 

159,  57  Am.  Rep.  43,  24  N.  W.  920,  presumption  is  in  favor  of  an  elec- 

where   the   testamentary   disposition  tion;  the  reasoning  of  the  court,  if 

to    the    widow    was    practically    the  not   its   actual   decision,    appears    to 

same     as    her    statutory    fee-simple  proceed    upon    a    misapprehension    of 

"dower,"   it  was   held  that  she   was  the  true  principle. 


§  499  EQUITY    JURISPRUDENCE.  950 

given  to  the  executors  to  sell,  for  any  purpose,  is  not  in- 
consistent with  the  widow's  claim  of  dower  in  the  lands 
so  devised,  and  therefore  no  necessity  for  an  election  by 
her  is  created.  The  will,  in  such  case,  is  to  be  interpreted 
as  though  it  had  expressed  the  intention  for  the  lands  to  be 
sold  subject  to  the  widow's  dower.  This  conclusion  is  the 
same,  even  although  the  will  directs  that  an  interest  in 
some  part  of  the  proceeds  of  the  sale  should  be  given  or 
secured  to  the  widow.i     Some  special  provision  of  the  will, 

§499,  1  French  v.  Davies,  2  Ves.  572;  Ellis  v.  Lewis,  3  Hare,  310; 
Dowson  V.  Bell,  1  Keen,  761;  Gibson  v.  Gibson,  1  Drew.  42,  57;  Bending 
V.  Bending,  3  Kay  &  J.  257.  In  Ellis  v.  Lewis,  3  Hare,  310,  the  testator 
devised  all  his  real  estate  to  a  trnstee,  upon  trust,  to  sell  and  to  convey 
the  same  to  purchasers,  and  to  hold  the  proceeds,  together  with  tlie  residue 
of  his  personal  estate,  upon  trust,  to  pay  one  half  of  the  interest  and 
income  thereof  to  his  wife  during  her  widowhood,  and  the  other  half 
(and  the  whole  after  his  widow's  death  or  marriage)  to  his  sister  for  her 
life,  and  finally,  to  pay  the  principal  of  such  fund  to  the  cliildren  of  the 
testator's  said  sister.  Wigram,  V.  C,  decided  that  no  case  of  election 
arose;  that  the  widow  was  entitled  to  the  benefit  given  by  the  will,  and 
also  to  her  dower  in  all  the  lands.  He  laid  down  the  rule  as  follows: 
"I  take  the  law  to  be  clearly  settled  at  this  day  that  a  devise  of  lands  eo 
nomine,  upon  trust,  for  sale,  or  a  devise  of  lands  eo  nomine  to  a  devisee 
beneficially,  does  not,  per  se,  express  any  intention  to  devise  the  lands 
otherwise  than  subject  to  their  legal  incidents,  that  of  dower  included. 
There  must  be  something  more  in  the  will,  something  inconsistent  with 
the  enjoyment  by  the  widow  of  her  dower,  by  metes  and  bounds,  or  the 
devise,  standing  alone,  will  be  construed  as  I  have  stated.  [Authorities 
are  here  referred  to.]  If  that  be  so,  it  is  impossible,  in  the  case  of  a 
devise  of  lands  upon  trust  for  sale,  that  any  direction  for  the  applica- 
tion of  the  proceeds  of  such  sale  can  affect  the  case.  The  devise  is  of 
land  subject  to  dower.  The  trust  to  sell  is  a  trust  to  sell  subject  to  dower; 
and  the  proceeds  of  the  sale  will  represent  the  gross  value  of  the  estate, 
minus  the  value  of  the  dower.  Whatever  direction,  therefore,  for  the 
mere  distribution  of  the  proceeds  the  will  may  contain,  that  direction  must 
leave  the  widow's  right  to  dower  untouched.  ...  I  found  myself  on  these 
two  propositions:  1.  That  a  devise  of  land  upon  trusts  for  sale  does  not, 
per  se,  import  an  intention  to,  pass  the  land  otherwise  than  subject  to  the 
legal  incident  of  dower;  and  2.  That  the  direction  to  divide  the  proceeds 
of  the  sale  cannot  decide  what  the  subject  of  sale  is;  and  there  is  no  cir- 
cumstance affecting  the  proposition  in  its  application  to  the  present  case." 
The  American  cases  adopt  the  snir.e  rule,  and  upon  the  same  course  of 


951  CONCERNING    ELECTION.  §  500 

however,  in  addition  to  the  mere  trust,  or  power  to  sell, 
and  to  the  direction  for  distributing  the  proceeds,  may  cre- 
ate the  inconsistency  which  prevents  this  rule  from  apply- 
ing, and  requires  an  election  by  the  widow.^  ^ 

§  500.  An  Annuity  or  Rent-charge  Given  to  the  Widow 
Charged  upon  Lands  Devised  to  Others. — The  question  as 
to  the  effect  of  an  annuity  or  rent-charge  given  to  the  widow, 
and  charged  upon  lands  subject  by  the  law  to  her  dower, 
which  are  at  the  same  time  devised  to  others,  gave  rise  to 
some  discrepancy  among  the  earlier  decisions,  but  has  been 

reasoning:  Adsit  v.  Adsit,  2  Johns.  Ch.  448,  7  Am.  Dec.  539;  Bull  v. 
Church,  5  Hill,  207,  2  Denio,  430,  43  Am.  Dec.  754;  Fuller  v.  Yates,  8 
Paige,  325;  Wood  v.  Wood,  5  Paige,  601,  28  Am.  Dec.  451;  Lewis  v. 
Smith,  9  N.  Y.  502,  61  Am.  Dec.  706;  Whilden  v.  Whilden,  Riley  Ch.  205; 
Hall  V.  Hall,  8  Rich.  407,  64  Am.  Dec.  758;  Gordon  v.  Stevens,  2  Hill  Ch. 
46,  27  Am.  Dec.  445;  Timberlake  v.  Parish's  Ex'r,  5  Dana,  345;  Kinsey 
V.  Woodward,  3  Harr.   (Del.)  459^ 

§  499,  2  Thus  in  Vernon  v.  Vernon,  53  N.  Y.  351,  362,  a  testator  who 
owned  an  undivided  half  of  certain  land  directed  his  executors  to  sell  his 
own  share  therein,  at  a  price  fixed  by  him  in  the  will,  or  else  to  take  a 
conveyance  of  the  other  half  from  his  co-owner  at  the  same  price  for 
which  he  authorized  his  own  share  to  be  sold.  The  court  held  that  this 
direction  showed  a  clear  intention  on  the  testator's  part  to  transfer,  in 
case  of  a  sale,  the  whole  title  to  his  own  land,  free  from  any  claim  of 
dower;  and  the  widow  was  therefore  put  to  an  election.  See,  also.  Savage 
V.  Burnham,  17  N.  Y.  561,  577.  In  Herbert  v.  Wren,  7  Cranch,  370,  379, 
there  is  a  dictum  of  Chief  Justice  Marshall  concerning  the  presumption 
as  to  the  testator's  intention,  arising  from  a  direction  to  sell  the  residue 
of  his  real  estate  for  the  purpose  of  paying  his  debts,  which  would  limit 
the  generality  of  the  language  used  by  Vice-Chaneellor  Wigram,  quoted 
in  a  preceding  note.  And  see,  on  this  point,  Norris  v.  Clark,  10  N.  J. 
Eq.  51. 

§  499,  (a)  Konvalinka  v.  Schlegel,  §  499,    (b)    See,  also.  Bannister  v. 

104   N.  Y.   125,   58  Am.  Rep.   494,  9  Bannister,  37  S.  C.  529,  16  S.  E.  612. 

N.  E.  868;  where  it  was  held  that  no  In   In   re   Gorden,   172  N.   Y.   25,   92 

necessity  for  an  election  existed,  al-  Am.  St.  Rep,  689,  64  N.  E'.  753,  re- 

though  the  proceeds  of  the  sale  were  viewing    the    New   York   cases,    the 

directed  to  be  divided  between  the  rule   is    thus   laid    down:    "While    a 

testator's  wife  and  children,  "share  mere  power  of  sale,  to  be  promptly 

and    share    alike."     See,    also,    Scott  exercised  for  the  purpose  of  distri- 

V.  Vaughn,  83  S.  C.  362,  65  S.  E.  269.  bution,   does   not   put  the   widow  to 


§  500  EQUITY    JURISPRUDENCE.  952 

completely  settled  by  the  whole  current  of  modern  author- 
ity. ^  The  rule  may  be  regarded  as  firmly  established,  that 
an  annuity  or  a  rent-charge  created  by  the  testator  in  his 

§  500,  1 1  shall  depart  from  the  rule  which  I  have  usually  observed, 
not  to  refer  to  or  comment  upon  the  opinions  expressed  by  other  writers, 
for  the  purpose  of  making  a  few  comments  upon  the  doctrine  laid  down 
in  a  work  of  great  value.  In  the  American  edition  of  White  and  Tudor's 
Leading  Cases  in  Equity  (4th  ed.,  vol.  1,  pp.  564—568),  the  note  of  the 
American  editor  draws  a  distinction  between  wills  creating  an  annuity 
for  the  wife  chargeable  on  personal  and  real  property  both,  and  wills 
creating  a  rent-charge  chargeable  on  real  estate  alone,  maintains  the  doc- 
trine that  the  fonner  kind  of  provision  alone  creates  no  necessity  for  an 
election  by  the  widow,  while  the  latter  is  inconsistent  with  a  claim  of 
dower,  and  puts  the  widow  to  an  election,  and  insists  that  all  the  English 
cases,  the  most  recent  as  well  as  the  earliest,  recognize  this  distinction, 
and  make  it  the  foundation  of  their  decisions.  I  do  not  purpose  to 
examine  this  opinion  upon  principle,  but  simply  to  show  the  exact  posi- 
tion of  the  English  cases,  with  reference  to  the  alleged  distinction.  A 
cai-eful  examination  of  the  English  cases  will  show  that,  so  far  from 
recognizing  and  upholding  this  distinction  between  an  annuity  and  a  rent- 
charge,  they  expressly  reject  it ;  not  one  modem  decision  is  based  upon 
it ;  the  opinions  uniformly  treat  the  effect  of  the  two  provisions  as  exactly 
the  same,  and  in  certain  of  the  most  important  and  authoritative  cases 
the  court  examines  the  question  and  pronounces  against  the  doctrine, 
which  had  been  suggested  in  the  arguments  of  counsel.  It  is  true  that 
there  are  a  few  early  eases  which  have  been  supposed  to  maintain  such  a 
view,  and  have  sometimes  been  regarded  as  authorities  in  support  of  the 
distinction.  They  are  Villa  Real  v.  Lord  Galway,  1  Brown  Ch.  292,  note; 
Amb.  682 ;  Arnold  v.  Kempstead,  Amb.  466,  2  Eden,  236 ;  Wake  v.  Wake, 
3  Brown  Ch.  255;  and  Jones  v.  Collins,  Amb.  730.  Of  these.  Villa  Real 
v.  Lord  Galway,  1  Brown  Ch.  292,  note,  is  the  leading  case.  It  should 
be  observed,  however,  that  even  these  cases  are  not  any  authority  for  the 
particular  distinction  which  I  have  described;  so  far  as  they  bear  upon 
the  point,  they  go  too  far,  since  they  purport  to  hold  that  even  an  annuity 
charged  by  the  testator  upon  his  property  is  inconsistent  with  the  widow's 
dower.  But  these  cases,  so  far  as  they  bore  upon  this  question  at  all, 
and  attempted  to  lay  down  any  rule  concerning  the  effect  of  such  a  pro- 
vision in  the  will,  have  been  repeatedly  overruled;  if  supported  as  deci- 
sions, and  recognized  as  authorities  for  any  purjjose,  it  is  upon  entirely 

her  election,  the  vesting  of  title  in  and  the  payment  over  of  the  annual 

trustees  not  only  with  power  to  sell  income   to  the  widow   and   children, 

and  reinvest,  but  with  special  direc-  during  the  term  of  the  trust,  we  re- 

tions  as  to  control  and  management  gard  as  suflScient." 


953  CONCERNING   ELECTION.  §  500 

will  in  favor  of  his  widow,  and  charged  upon  lands  in  which 
she  is  otherwise  dowable,  or  upon  his  real  and  personal 
property,  which    are  at  the  same    time    devised    and  be- 

different  and  distinct  matters  and  testamentary  pi-o visions.  The  case  of 
Hall  V,  Hill,  1  Con.  &  L.  129,  decided  by  Sir  Edward  Sugden  when  lord 
chancellor  of  Ireland,  has  been  regarded  by  courts  and  writers  as  of  the 
highest  authority.  He  reviews  the  decision  in  Villa  Real  v.  Lord  Gahvay, 
1  Brown  Ch.  292,  note,  and  says,  concerning  it,  that  Lord  Camden  evi- 
dently intended  to  put  the  case  simply  and  entirely  upon  the  gift  of  an 
annuity,  which  he  held  was  inconsistent  with  dower:  "It  is  quite  impos- 
sible to  say  that  Lord  Camden's  authority  has  i-emained  untouched  on 
that  point,  because  the  abstract  question  is  quite  settled  that  an  annuity 
out  of  the  estate  is  now  held  not  to  have  the  effect  of  barring  the  wife 
of  her  dower  as  inconsistent  with  it.  But  it  is  very  singular  that,  although 
this  is  the  perfectly  settled  law  of  the  court,  all  the  subsequent  authori- 
ties have  taken  care  to  save  whole  the  decision  of  Lord  Camden  in  Villa 
Real  v.  Lord  Galway,  1  Brown  Ch.  292,  note,  and  have  endeavored  and 
indeed  have  distinguished  it.  In  Birmingham  v.  Kirwan,  2  Schoales  &  L. 
444,  Lord  Redesdale  put  the  case  upon  all  the  circumstances, — the  direc- 
tions in  the  will  with  respect  to  the  management  of  the  whole  estate,  the 
payment  of  the  annuity,  and  the  accumulation  during  the  minority  of 
the  child — which  circumstances,  in  his  opinion,  were  sufficient  to  authorize 
the  decision.  So,  again.  Lord  Lyndhurst,  in  Roadley  v.  Dixon,  3  Russ. 
192,  comes  to  the  same  conclusion.  Both  held  Villa  Real  v.  Galway,  1 
Brown  Ch.  292,  note,  a  binding  authority,  hut  both  on  a  ground  which 
Lord  Camden  cautiously  abstained  from  resting  his  judgment  upon.  I 
think,  mj'self,  that  Villa  Real  v.  Lord  Galway,  1  Brown  Ch.  292,  note, 
may  be  considered  an  authority  on  the  grounds  suggested;  but  I  cannot 
say  that  it  is  an  authority  on  the  abstract  question,  because  I  consider  that 
the  abstract  question  has  been  decided  the  other  way."  In  Roadley  v. 
Dixon,  3  Russ.  192,  the  question  was  directly  presented,  and  argued  with 
great  fullness.  The  counsel  on  one  side,  Mr.  Sugden,  afterwards  lord 
chancellor,  raises  the  exact  point,  and  shows  that  no  difference  between 
an  annuity  charged  on  property  generally,  and  a  rent-charge  on  the  real 
estate,  has  been  made  by  the  decisions.  See  pp.  196-198.  He  commented 
on  Villa  Real  v.  Lord  Galway,  1  Brown  Ch.  292,  note,  and  the  three  other 
cases  similar  to  it,  and  said:  "If  it  be  law  that  a  widow  is  put  to  her 
election  by  the  mere  bequest  of  a  rent-charge,  almost  every  judge  of  this 
court  has  been  ignorant  of  one  of  its  most  important  rules;  and  if  such 
be  not  the  law,  the  decision  of  Lord  Camden  cannot  be  sustained."  The 
opposing  counsel,  one  of  the  ablest  equity  lawyers,  and  afterwards  a  dis- 
tinguished vice-chancellor,  Mr.  Shadwell,  distinctly  and  expressly  con- 
ceded that  a  mere  rent-charge  was  not  inconsistent  with  dower.     He  said 


§  500  EQUITY    JURISPRUDENCE.  954 

queathed  to  others,  is  not  of  itself,  and  without  additional 
provisions  in  the  will  concerning  the  property  bestowed, 
inconsistent  with  the  widow's  claim  to  dower  in  the  same 
lands,  and  does  not  of  itself,  therefore,  create  the  necessity 

(p.  198)  :  "Villa  Real  v.  Lord  Galway,  1  Brown  Ch.  292,  note,  has  never 
been  overruled;  it  still  must  be  considered  as  affording  the  rule  of  deci- 
sion, whenever  a  like  state  of  facts  occurs.  The  question  is  not  as  to  the 
effect  of  a  simple  bequest  of  a  rent-charge^  but  on  the  effect  of  all  the 
dispositions  contained  in  the  will."  He  then  goes  on  to  show  that  in  addi- 
tion to  the  rent-charge  upon  a  certain  specified  estate  devised,  the  will 
contains  other  dispositions  inconsistent  with  dower,  such  as  a  power  of 
management  and  occupation  given  to  trustees,  which,  it  had  been  settled, 
are  inconsistent  with  dower;  and  in  this  respect  the  case  was  exactly  like 
that  of  Villa  Real  v.  Lord  Galway,  1  Brown  Ch.  292,  note.  Lord  Chan- 
cellor Lyndhurst  examined  the  decisions  in  Villa  Real  v.  Lord  Galway, 
1  Brown  Ch.  292,  note,  and  in  the  other  similar  eases  (pp.  201,  202). 
He  expressly  holds  that  Villa  Real  v.  Lord  Galway,  1  Brown  Ch.  292, 
note,  cannot  be  supported  upon  the  ground  which  Lord  Camden  took  in 
deciding  it,  viz.,  that  an  annuity  or  a  rent-charge  was  inconsistent  with 
dower ;  but  nevertheless  that  case  should  not  be  completely  overruled ;  the 
decision  was  correct  upon  all  the  facts  of  the  case,  and  was  a  binding 
authority  upon  the  same  condition  of  facts.  What  were  the  facts'?  In 
addition  to  the  rent-charge,  the  will  gave  the  trustees  power  to  hold  and 
possess  and  manage  the  lands  devised,  to  receive  all  the  rents  and  profits, 
and  to  accumulate  them  during  the  minority  of  an  infant,  etc.  These 
provisions,  all  taken  together,  were  inconsistent  with  any  claim  for  dower. 
This  examination  demonstrates  the  following  conclusions:  1.  The  English 
decisions  do  not  recognize,  and  are  not  rested  upon,  any  assumed  distinc- 
tion between  the  effect  of  a  rent-charge  upon  land  alone,  and  an  annuity 
charged  upon  both  personal  and  real  estate;  2.  The  few  early  cases  wliich 
were  once  regarded  as  furnishing  some  authority  for  such  a  distinction 
have  been  expressly  repudiated,  and  their  decisions  are  made  to  rest  upon 
entirely  different  provisions  in  the  wills;  3.  The  more  recent  English  eases 
cited  in  the  next  note  all  lay  down  exactly  the  same  rule  with  reference 
to  an  annuity  and  a  rent-charge. 

There  may  be  a  few  American  eases  which  recognize  the  distinction, 
and  which  make  it  the  basis  of  decision ;  but  it  will  be  seen  that  they  are 
nearly,  if  not  quite,  all  of  them  early  cases,  and  expressly  follow  the  sup- 
posed authority  of  Villa  Real  v.  Lord  Galway,  1  Brown  Ch.  292,  note,  and 
the  others  of  the  same  class.  The  question  naturally  has  not  often  arisen 
in  this  country,  since  wills  creating  rent-charges  upon  particular  real 
estate  are  very  infrequent. 


955  CONCERNING   ELECTION.  §  501 

for  an  election  between  the  annuity  or  rent-charge  and  her 
dower.  2 

§  501.  Power  of  Occupying,  Enjoying",  Managing,  and 
Leasing  Expressly  Given  to  Devisees. — The  rule  is  settled  by 
the  English  cases  that  where,  after  or  in  connection  with 
a  provision  for. the  widow's  benefit,  the  testator  expressly 
prescribes  the  mode  in  which  the  lands  devised  shall  be  pos- 
sessed, occupied,  enjoyed,  or  managed  by  the  devisees,  this 
disposition  shows  a  clear  intention  on  his  part  to  give  the 
entirety  of  the  lands,  which  is  inconsistent  with  any  claim 
of  dower,  and  therefore  a  case  for  an  election  is  raised. 
It  is  also  settled  by  a  unanimous  consent  of  the  English 
authorities,  as  a  particular  instance  of  this  rule,  that  where, 
after  a  provision  is  made  for  the  widow,  the  lands  are  de- 

§  500,  2  And  a  clause  giving  ber  the  remedy  of  entry  and  distress  in 
case  of  non-payment  is  not  an  additional  provision  which  renders  an 
election  necessary :  Pitts  v.  Snowden,  1  Brown  Ch.  292,  note ;  Pearson  v. 
Pearson,  1  Brown  Ch.  291;  Foster  v.  Cook,  3  Brown  Ch.  347;  Birming- 
ham V.  Kirwan,  2  Schoales  &  L.  444,  453,  per  Lord  Redesdale;  Hall  v. 
Hill,  1  Con.  &  L.  129,  1  Dru.  &  War.  103,  per  Sir  Edward  Sugdert ;  Road- 
ley  V.  Dixon,  3  Russ.  192,  201,  202,  per  Lord  Lyndhurst;  Dowson  v.  Bell, 
1  Keen,  761,  per  Lord  Langdale;  Harrison  v.  Harrison,  1  Keen,  765,  per 
Lord  Langdale;  Holdieh  v.  Holdich,  2  Younge  &  C.  18,  per  Knight  Bruce, 
V.  C.  The  early  cases  of  Villa  Real  v.  Lord  Galway,  1  Brown.  Ch.  292, 
note,  Arnold  v.  Kempstead,  Amb.  466,  2  Eden,  236,  Jones  v.  Collier,  2 
Eden,  730,  and  Wake  v.  Wake,  3  Brown  Ch.  255,  1  Ves.  335,  so  far  as 
they  lay  down  any  different  doctrine,  have  been  repeatedly  explained, 
limited,  and  overruled.  See  Birmingham  v.  Kirwan,  2  Schoales  &  L.  444, 
453,  per  Lord  Redesdale;  Hall  v.  Hill,  1  Con.  &  L.  129;  1  Dru.  &  War. 
103,  per  Sir  Edward  Sugden;  Roadley  v.  Dixon,  3  Russ.  192,  201,  202, 
per  Lord  Lyndhurst;  and  see  the  comments  upon  these  cases  in  the  last 
preceding  note.  The  American  cases  are  few,  but  the  decided  weight  of 
authority  is  in  support  of  the  rule  as  settled  by  the  English  courts,  and 
as  stated  in  the  text:  Smith  v.  Kniskern,  4  Johns.  Ch.  9;  and  Adsit  v. 
Adsit,  2  Johns.  Ch.  448,  7  Am.  Dec.  539,  opinion  of  Chancellor  Kent; 
Lasher  v.  Lasher,  13  Barb.  106;  Hatch  v.  Bassett,  52  N.  Y.  359 ;»  but, 
per  contra,  White  v.  White,  16  N.  J.  L.  202,  211,  31  Am.  Dec.  232. 

§500,  (a)  To  the  same  effect,  see  reviewing  the  English  authorities: 
the  recent  cases  of  Horstmann  v.  Heirs  of  Eivers  v.  Gooding,  43  S.  C. 
riege,  172  N.  Y.  381,  65  N.  E.  202,       428,  21  S.  E.  310. 


§  501  EQUITY    JURISPEUDENCE.  956 

vised  to  trustees,  upon  trust,  for  any  purpose,  with  power 
or  directions  given  to  the  trustees  to  occupy,  or  possess,  or 
manage,  or  lease,  or  even  to  cut  down  timber  on  any  part  of 
the  lands,  such  mode  of  disposition  is  inconsistent  with  the 
claim  of  dower,  and  makes  an  election  necessary.  That  a 
power  of  management  and  of  leasing  given  to  the  trustees 
is  inconsistent  with  dower  is  established  by  an  overwhelm- 
ing array  of  decisions. ^     In  connection  with  this  form  of 

§  501,  1  Birmingham  v.  Kirwan,  2  Sehoales  &  L.  444 ;  Miall  v.  Brain, 
4  Madd.  119;  Butcher  v.  Kemp,  5  Madd.  61;  Goodfellow  v.  Goodfellow, 
18  Beav.  356.  In  Birmingham  v.  Kirwan,  2  Sehoales  &  L.  444,  a  tes- 
tator devised  a  house  and  grounds  to  trustees,  upon  trust,  to  permit  his 
wife  to  enjoy  the  same  for  her  life,  she  paying  a  small  rent  per  acre  for 
the  land,  and  to  keep  the  house  in  repair,  and  not  to  let  it,  and  devised  the 
residue  of  his  lands  to  third  persons.  Lord  Redesdale  held  that  the  dis- 
position made  for  the  widow  was  inconsistent  with  her  claim  of  dower  in 
the  house  and  grounds  thus  given  for  her  use,  but  she  was  entitled  to 
dower  in  the  residue  devised  to  the  third  persons.  In  Miall  v.  Brain,  4 
Madd.  119,  a  testator  devised  all  his  real  and  personal  estate  to  trustees, 
upon  trust  as  to  a  certain  specified  house  and  grounds,  for  his'  widow 
during  her  life,  and  to  pay  her  out  of  the  rents  and  profits  of  the  estate 
a  certain  annuity  for  her  life,  and  upon  the  further  trust  to  permit  his 
daughter  to  use,  occupy,  and  enjoy  a  certain  other  house  and  grounds  for 
her  life,  and  the  residue  was  to  be  divided  among  his  children.  Sir  John 
Leach,  M.  R.,  held  that  the  provision  for  the  daughter  showed  a  plain 
intent  to  devise  the  entirety,  and  was  inconsistent  with  any  dower  in  the 
same  premises,  "and  that  the  same  intention  must  necessarily  be  applied 
to  the  whole  estate  which  passes  by  the  same  devise."  In  Butcher  v. 
Kemp,  5  Madd.  61,  a  testator,  having  devised  some  lands  to  his  wife  for 
her  life,  and  given  her  certain  legacies,  devised  a  farm  to  trustees  during 
the  minority  of  his  daughter,  and  directed  them  to  carry  on  the  business 
of  the  farm,  or  let  it  on  lease  during  the  daughter's  minority.  Sir  John 
Leach  held  that  the  widow  was  put  to  her  election.  "This  case  is  within 
the  principle  of  Miall  v.  Brain,  4  Madd.  119,  which  was  lately  before  me, 
in  which  I  held  the  claim  of  dower  necessarily  excluded  by  the  gift  of  a 
house  for  the  personal  occupation  and  enjoyment  of  the  testator's  daugh- 
ter." The  following  cases  are  authorities  for  the  rule  that  power  or 
direction  given  to  trustees  to  manage  or  lease,  etc.,  is  inconsistent  with 
dower:  Roadley  v.  Dixon,  3  Russ.  192;  Parker  v.  Sowerby,  4  De  Gex, 
M.  &  G.  321;  1  Drew.  488;  Thompson  v.  Burra,  L.  R.  16  Eq.  592;  Hall  v. 
Hill,  1  Dru.  &  War.  94;  1  Con.  &  L.  120;  Raynard  v.  Spence,  4  Beav. 
103;  Taylor  v.  Taylor,  1  Younge  &  C.  727;  Lowes  v.  Lowes,  5  Hare,  501; 


957  CONCERNING    ELECTION.  §  502 

disposition  the  rule  seems  to  be  settled  by  the  English 
courts,  that  where  a  testator  devises  the  whole  of  his  prop- 
erty together  in  general  terms,  and  it  is  manifest  that  it 
was  his  intention  that  one  part  of  the  property  should  not 
be  subject  to  dower,  it  follows  that  no  part  of  the  property 
embraced  in  the  one  general  disposition  should  be  consid- 
ered as  so  subject.2 

§  502.    Devise  to  Widow  and  Others  in  Equal  Shares. — 

The  rule  is  also  settled  in  England  by  a  current  of  decisions 
that  where  a  testator  devises  lands,  which  are  by  law  sub- 
ject to  dower,  in  express  terms,  to  his  widow  and  others, — 
as,  for  example,  his  children, — in  equal  shares,  this  pro- 
vision for  an  equality  among  the  devisees  is  inconsistent 
with  a  claim  of  dower,  and  creates  the  necessity  for  an  elec- 
tion by  the  widow. ^  *    Although  this  rule  is  sustained  by  the 

Pepper  v.  Dixon,  17  Sim.  200 ;  Grayson  v.  Deakin,  3  De  Gex  &  S.  298 ; 
O'Hara  v.  Chaine,  1  Jqnes  &  L.  662 ;  Holdich  v.  Holdich,  2  Younge  &  C. 
22.  It  is  upon  this  ground  that  the  decision  in  Villa  Real  v.  Lord  Galway, 
1  Brown  Ch.  292,  is  sustained. 

§  501,  2  Miall  V.  Brain,  4  Madd.  119,  per  Sir  John  Leach ;  Roadley  v. 
Dixon,  3  Russ.  192,  per  Lord  Lyndhurst. 

§502,  1  Chalmers  v.  Storil,  2  Ves.  &  B.  222;  Dickson  v.  Robinson, 
Jacob,  503;  Roberts  v.  Smith,  1  Sim.  &  St.  513;  Reynolds  v.  Torin,  1 
Russ.  129,  133.  In  Chalmers  v.  Storil,  2  Ves.  &  B.  222,  a  testator  said : 
"I  give  to  my  dear  wife  and  my  two  children  all  my  estates  whatsoever, 
to  be  equally  divided  among  them,  whether  real  or  personal,"  and  after- 
wards specified  the  property  given.  Sir  William  Grant,  M.  R.,  held  that 
this  disposition  was  totally  inconsistent  with  the  claim  of  dower.  "The 
testator  directing  all  his  real  and  personal  estate  to  be  equally  divided, 
the  same  equality  is  intended  to  take  place  in  the  division  of  the  real  as 
of  the  personal  estate,  which  cannot  be  if  the  widow  takes  out  of  it  her 
dower,  and  then  a  third  of  the  remaining  two  thirds."  In  the  other  cases 
cited,  similar  dispositions  were  made  in  the  wills,  and  the  same  reasoning 
was  used  and  the  same  conclusion  reached  by  Sir  Thomas  Plumer,  M.  R., 
in  one,  and  by  Sir  John  Leach,  V.  C,  in  another. 

§502,  (a)   See,  to  the  same  effect,  C.   Rep.  450;   Gloss  v.  Eldert,   37  N. 

Durfee's  Petition,  14  R.  I.  47;  In  re  Y.    Supp.    353,    16    Misc.    Rep.    104; 

Purcell    (R.    L),    57    Atl.    377;    Mc-  Helme  v.  Strater,  52  N.  J.  Eq.  591, 

Gregor  v.  McGregor,  20  Grant  (Can.)  30  Atl.  333. 


§  503  EQUITY    JURISPRUDENCE.  958 

authority  of  several  direct  decisions,  it  cannot  he  reconciled 
with  'the  general  principle,  which  underlies  all  cases  of  elec- 
tion between  a  testamentary  disposition  for  the  widow  and 
her  dower, — the  principle  that  a  testator  is  to  be  presumed 
to  have  intended  to  devise  only  what  belonged  to  him  and 
what  he  was  able  to  give.  The  correctness  of  the  rule  has 
been  repeatedly  questioned. 2  b 

§  503.    Election  in  Devises  of  Community  Property. — In 

California  and  a  few  other  states  the  common-law  dower 
has  been  wholly  abolished,  and  a  species  of  interest,  bor- 
rowed from  the  French  and  Spanish  laws,  has  been  intro- 
duced, called  '* community  property."  This  community 
property  embraces  both  what  at  the  common  law  would  be 
real  and  personal  estate,  and  in  fact  substantially  the  same 
rules  govern  the  devolution  of  things  real  and  things  per- 
sonal. The  law  of  these  states  recognizes  two  kinds  of 
property  which  may  belong  to  the  spouses  in  case  of  mar- 
riage,— the  ''separate  property"  and  'the  "community 
property."  The  separate  property  of  either  husband  or 
wife  is  what  he  or  she  owned  at  the  time  of  marriage,  and 
what  he  or  she  acquired  during  marriage  by  inheritance, 
devise,  bequest,  or  gift,  and  the  rents  and  profits  thereof. 
The  separate  property  of  each  spouse  is  wholly  free  from 
all  interest  or  claim  on  the  part  of  the  other,  and  is  entirely 
under  the  management,  control,  and  disposition,  testament- 
ary or  otherwise,  of  the  spouse  to  whom  it  belongs.  All 
other  property  is  community.    It  is  a  settled  doctrine  that 

§  502,  2  Where  the  testator  devises  all  his  estates  to  his  widow  and  chil- 
dren, to  be  equally  divided  among  them,  the  general  principle  can  easily 
apply,  that  he  intended  to  devise  only  what  belonged  to  him,  and  that  the 
equal  division  should  therefore  be  made  after  the  widow's  dower  had  been 
assigned.  Such  a  proceeding  would  fully  satisfy  the  language  of  the  will. 
See  Ellis  v.  Lewis,  3  Hare,  315 ;  and  Bending  v.  Bending,  3  Kay  &  J.  261, 
per  Page  Wood,  V.  C. 

§  502,  (b)  This  paragraph  of  the  and  followed,  in  In  re  Hatch's,  Es- 
text  is  quoted,  and  the  author's  com-  tate,  62  Vt.  300,  22  Am.  St.  Rep.  109, 
ments  ou  the  English  rule  approved       18  Atl.  814. 


959  CONCERNING    ELECTION.  §  503 

all  property  acquired  by  the  husband  after  the  marriage, 
and  during  its  continuance,  is  presumed  to  be  community. 
During  the  marriage  the  husband  alone  has  the  custody, 
control,  management,  and  power  of  disposition  of  the  com- 
munity property,  and  it  is  liable  for  his  debts;  but  still  in 
theory  the  wife  has  an  inchoate,  undivided  interest  in  it 
during  the  entire  coverture,  so  that  the  husband  cannot 
transfer  it  by  mere  gift  or  otherwise  with  the  intent  and 
purpose  of  defrauding  her  of  her  share,  or  of  defeating 
her  exclusive  interest  expectant  upon  his  death.*  Upon 
the  death  of  the  wife,  the  entire  community  property  vests 
in  the  husband,  without  the  necessity  of  any  administration. 
Upon  the  death  of  the  husband,  the  community  property  is 
first  subject  to  the  payment  of  debts  and  expenses  of  ad- 
ministration, and  of  the  residue  the  widow  is  entitled  abso- 
lutely to  one  undivided  half,  which  is  partitioned,  and  set 
apart,  and  vested  in  her  in  the  proceedings  for  administer- 
ing upon  the  estate;  while  the  other  half  is  subject  to  the 
testamentary  disposition  of  the  husband,  or  if  he  dies  in- 
testate, devolves  upon  specified  persons  as  his  "heirs." 
In  other  words,  the  husband's  power  extends  only  to  one 
half  of  the  community  property,  and  he  cannot  by  will  de- 
vise or  bequeath  it  in  any  manner  or  to  any  person  so  as  to 
infringe  upon  the  widow's  vested  right  to  one  half.i  ^  With 
respect  to  the  widow's  election,  whenever  the  husband  has 
made  a  provision  for  her  benefit,  and  has  assumed  to  dis- 
pose of  all  the  remaining  community  property,  the  Cali- 
fornia code  has  only  legislated  by  prescribing  the  time 
within  which  her  election  must  be  made,  in  cases  where  an 
election  is  necessary,  and  by  declaring  that  certain  con- 
duct by  her  shall  amount  to  an  election.    The  more  impor- 

§  503,  1  See  Cal.  Civ.  Code,  §  1402. 

§503,  (a)  The  text  is  cited  to  this  community  property  is  invalid  unless 

effect  in  Watson  v.  Harris,  61  Tex.  the  wife  joins  therein. 

Civ.   App.   263,   130   S.   W.   237.     By  §  503,  (b)  The  greater  part  of  this 

Cal.  Civ.  Code,  sec.  172,  amendment  paragraph    is    quoted    in    Pratt    v, 

of    1891,    a   voluntary   conveyance    of  Douglas,  38  N.  J.  Eq.  516,  535. 


§  §  504,  505  EQUITY    JURISPRUDENCE.  960 

tant  question,  when  a  case  for  election  arises  from  the  pro- 
visions of  a  will,  is  left  to  be  determined  by  the  settled 
doctrines  of  equity  jurisprudence  which  deal  with  that 
subject-matter, 

§  504.  In  all  the  cases  which  have  hitherto  arisen  upon 
wills  purporting  to  dispose  of  all  the  community  property, 
or  to  dispose  of  more  than  the  husband's  share,  the  courts 
of  California  have  proceeded  strictly  upon  the  analogy  be- 
tween the  widow's  interest  in  the  community  property  and 
her  common-law  right  of  dower,  and  have  fully  adopted 
the  general  doctrine  which  has  been  established  in  England 
and  in  many  of  the  American  states  concerning  election 
between  a  testamentary  provision  for  the  widow  and  her 
legal  dower  right. ^  It  might,  perhaps,  have  been  argued 
that  there  is  a  close  analogy  between  this  peculiar  kind  of 
ownership  called  community  property  and  the  case  of  a 
testator  who  owns  only  an  undivided  share  in  specific  lands 
which  he  disposes  of  by  his  will,  and  that  the  particular  rule 
established  by  the  English  decisions  in  relation  to  this  latter 
condition  of  fact  might  properly  be  applied  to  a  testament- 
ary disposition  made  by  a  testator  of  the  entire  community 
property,  of  which  he  is  only  empowered  to  bequeath  an 
undivided  half.  It  is  unnecessary  to  discuss  the  correct- 
ness of  such  a  supposed  analogy;  it  is  enough  to  say  that 
the  courts  have  not  adopted  it,  nor  applied  the  particular 
rule  to  which  I  have  referred.  They  have  expressly  fol- 
lowed the  leading  authorities  dealing  with  the  wife's  dower, 
and  have  extended  to  the  widow's  share  of  the  community 
property  both  the  reasoning  which  has  been  employed  and 
the  conclusions  which  have  been  reached  in  regard  to  the 
necessity  of  election  between  a  claim  of  dower  and  the 
benefits  given  by  a  husband's  will. 

§  505.  It  cannot  be  said  that  the  courts  have  settled  any 
special  rules  applicable  to  particular  forms  of  devise  or 

§504,  (a)  The  text  is  quoted  in  Pratt  v.  Douglas,  38  N.  J.  Eq.  516, 
536. 


961  CONCERNING   ELECTION.  §  505 

bequest  by  the  husband,  but  the  general  rule  for  the  deter- 
mination of  all  eases  they  have  established  in  a  very  clear 
and  certain  manner.  Whenever  a  husband  has  made  some 
testamentary  provision  for  his  wife,  and  has  also  assumed 
to  dispose  of  more  than  his  own  half  of  the  community 
property,  in  order  that  she  shall  be  put  to  her  election,  the 
testamentary  provision  in  her  behalf  must  either  be  de- 
clared in  express  terms  to  be  given  to  her  in  lieu  of  her  own 
proprietary  right  and  interest  in  the  community  property, 
or  else  an  intention  on  his  part  that  it  shall  be  in  lieu  of 
such  proprietary  right  must  be  deduced  by  clear  and  mani- 
fest implication  from  the  will,  founded  upon  the  fact  that 
the  claim  to  her  share  of  the  community  projDcrty  would  be 
inconsistent  with  the  will,  or  so  repugnant  to  its  dispositions 
as  to  disturb  and  defeat  them.  An  intent  of  the  husband  to 
dispose  of  his  wife's  share  of  the  community  property  by 
his  will,  and  thus  to  put  her  to  an  election,  will  not  be 
readily  inferred,  and  will  never  be  inferred  where  the  words 
of  the  gift  may  have  their  fair  and  natural  import  by  ap- 
plying them  only  to  the  one  half  of  the  community  property 
which  he  has  the  power  to  dispose  of  by  will.^ 

§  505,  1  The  courts  have  expressly  relied  on  and  followed  the  line  of 
cases  of  which  Adsit  v.  Adsit,  2  Johns.  Ch.  448,  7  Am.  Dec.  539,  and 
Fuller  V.  Yates,  8  Paige,  325,  are  examples:  Beard  v.  Knox,  5  Cal.  252, 
257,  63  Am.  Dec.  125;  In  re  Buchanan's  Estate,  8  Cal.  507,  510;  Smith  v. 
Smith,  12  Cal.  216,  225,  73  Am.  Dec.  533;  Scott  v.  Ward,  13  Cal.  458, 
469,  470;  Payne  v.  Payne,  18  Cal.  292,  301;  Burton  v.  Lies,  21  Cal.  87, 
91;  Morrison  V.  Bowman,  29  Cal.  337,  346-348;  In  re  Silvery,  42  Cal. 
210;  Broad  v.  Muri-ay,  44  Cal.  229;  King  v.  Lagrange,  50  Cal.  328;  In  re 
Estate  of  Frey,  52  Cal.  658.« 

In  Beard  v.  Knox,  5  Cal.  252,  257,  63  Am.  Dec.  125,  which  is  the  lead- 
ing case  in  the  state,  a  husband,  being  possessed  of  property  worth  twelve 

§505,    (a)    The   text   is   quoted  in  Miller,   69   Wash.   456,   125  Pac.  974 

Pratt  V.  Douglas,  38  N.  J.  Eq.  516,  (extrinsic  evidence  not  permitted  to 

536;  in  La  Tourette  v.  La  Tourette,  show  intent  of  testator  to  dispose  of 

15  Ariz.  200,  Ann.  Cas.  1915B,  70,  137  property  over  which  he  had  no  tes- 

I'ac.  426  (gift  of  all  testator's  prop-  tamentary  control).     See,  also,  In  re 

erty    to    his    wife    with    remainder  Gilmore,   81    Cal.    240,   22   Pac.   655; 

over;    no    election);    in    Herriek    v.  Estate  of  Gwin,  77  Cal.  313,  19  Pac. 

i    1-61 


§  506  EQUITY    JURISPRUDENCE.  962 

§  506.  The  Remaining  Questions  Stated. — ^I  have  thus  far 
discussed  the  subject  of  election  considered  as  an  equitable 
obligation  resting  upon  a  donee  under  certain  circum- 
stances, and  have  described  at  large  the  most  important  in- 

thousand  five  hundred  dollars,  all  community,  bequeathed  five  hundred 
dollars  to  his  wife,  and  all  the  residue  to  a  daughter.  The  widow  brought 
this  action,  claiming  that  she  was  entitled  to  one  half  of  the  entire  estate 
of  her  own  right,  and  also  to  the  legacy  of  five  hundred  dollars,  payable 
out  of  the  one  half  which  was  at  the  disposal  of  her  husband.  It  was 
urged  by  the  defendant  that  by  claiming  and  receiving  the  legacy  she  had 
precluded  herself  from  asserting  her  legal  right  to  the  statutory  half  of 
the  community  property.  The  court  sustained  her  contention  in  full,  and 
held  that  no  necessity  for  an  election  was  created  by  such  a  disposition. 
This  decision  has  been  reaffirmed  in  all  the  other  cases  cited  above,  several 
of  which  are  similar  in  their  facts.  In  Payne  v.  Payne,  18  Cal.  292,  301, 
a  husband,  leaving  a  wife  and  children,  gave  all  of  his  property,  being 
community,  to  his  wife  absolutely.  The  court  held  that  she  took  one  half 
of  the  estate  absolutely  as  of  her  own  right  by  virtue  of  the  community, 
and  the  other  one  half  under  and  by  virtue  of  the  will.  In  the  case  of 
Silvery's  Estate,  42  Cal.  210,  a  husband  left  all  of  his  property,  which 
was  entirely  community,  to  his  wife  for  her  life,  and  after  her  death  the 
whole  to  be  equally  divided  among  his  children.  It  was  argued  for  the 
children  that  the  widow  must  elect;  but  the  court  held  that  the  general 
language  of  the  will  must  be  confined  to  the  one  half  which  the  testator 
was  able  to  dispose  of;  that  the  widow  took  one  half  absolutely  as  her 
own,  and  the  other  half  for  her  life,  with  remainder  to  the  children,  and 
no  necessity  for  an  election  arose.  In  the  case  of  Frey's  Estate,  52  Cal. 
658,  the  testator  gave  one  half  of  all  his  property,  part  being  his  separate 
estate  and  part  community,  to  his  wife,  and  the  other  half  to  nephews  and 
nieces.  The  widow  was  held  not  bound  to  elect;  the  general  language  of 
the  will  must  be  confined  in  its  operation  to  the  share  of  the  property 

527;  Estate  of  Stewart,  74  Cal.  98,  Wauhop  (Tex.  Civ.  App.),  143  S.  W. 
15  Pac.  445;  Estate  of  Smith,  108  259;  Gulf,  C.  &  S.  F.  Ry.  Co.  v. 
Cal.  115,  119,  40  Pae.  1037;  Estate  of  Brandenburg  (Tex.  Civ.  App.),  167 
Wickersham,  138  Cal.  355,  363,  70  S.  W.  170;  Payne  v.  Farley  (Tex. 
Pac.  1076;  In  re  Prager's  Estate,  166  Civ.  App.),  178  S.  W.  793.  In  Pratt 
Cal.  450  137  Pac.  37  (mere  fact  v.  Douglas,  supra,  the  courts  of  New 
that  testator  left  a  large  portion  of  Jersey  had  occasion  to  examine  the 
his  estate  to  his  wife  does  not  raise  law  of  California  on  the  subject  of 
a  presumption  requiring  her  to  election  in  cases  of  community  prop- 
elect)  •  Moss  v.  Helsley,  60  Tex.  426;  erty,  and  the  conclusions  stated  in 
Autrey  v.  Stubenrauch,  63  Tex.  Civ,  the  text  were  adopted  and  approved. 
App.  247,  133  S.  W.  531;  Sauvage  v. 


963  CONCERNING   ELECTION.  §  506 

stances  in  which  the  necessity  for  an  election  is  created  by 
the  provisions  of  an  instrument  of  donation.  I  shall  finish 
my  treatment  of  the  subject  by  examining  the  various  in- 
cidents which  may  be  connected  with  election  in  any  of  its 

which  the  testator  could  bequeath.  King  v.  Lagrange,  50  Cal.  328,**  is 
a  very  strong  case.  A  testator  owning  land,  all  of  which  was  community 
property,  devised  it  all  to  his  wife,  with  a  power  of  sale,  however,  given 
to  the  executor,  which,  of  course,  was  confined  in  its  legal  effect  to  the 
half  of  the  real  estate  capable  of  being  disposed  of  by  the  testator.  The 
executor,  in  ignorance  of  the  law  concerning  community  property,  sold  all 
the  land  devised  by  virtue  of  his  power;  the  purchaser,  in  like  ignorance, 
supposed  he  was  buying  the  entire  estate,  and  the  widow,  in  like  igno- 
rance, received  the  purchase-money  for  the  whole.  Held,  that  the  widow 
was  not  thereby  precluded  from  setting  up  and  enforcing  a  claim  to  the 
half  of  the  land  which,  as  community  property,  belonged  to  her  of  her 
own  right,  and  that  the  will  did  not  present  a  case  for  an  election.  Even 
if  an  election  had  been  necessary,  the  acts  of  the  widow,  being  done  in 
ignorance  of  the  tiTie  facts  and  of  her  own  rights,  would  not  have  amounted 
to  an  election.  In  Morrison  v.  Bowman,  29  Cal.  337,  an  election  was  held 
to  be  necessary.  One  Smith  devised  to  his  wife,  for  her  life,  one  third 
of  the  Bodega  rancho,  and  the  house  and  furniture  thereon,  which  raneho 
and  all  the  property  thereon  was  his  separate  estate,  with  remainder  in 
fee  to  his  children  born  from  her,  and  the  remaining  two  thirds  of  said 
rancho  and  property  thereon  he  gave  in  fee  to  the  same  children.  He 
also  owned  another  rancho,  which  was  all  community  property,  called  the 
Blucher  rancho.  The  greater  part  of  this  he  gave  in  specified  portions 
for  life  to  children,  remainder  in  fee  to  grandchildren  by  a  former  wife. 
The  will  added  that  a  certain  portion  of  this  Blucher  rancho  was  left 
undisposed  of  by  the  foregoing  provisions;  that  the  testator  intended 
during  his  lifetime  to  sell  such  portion  for  the  purpose  of  raising  funds 
to  pay  off  his  debts;  but  if  this  portion,  or  any  of  it,  remained  unsold, 
he  directed  his  executors  to  sell  the  same  and  pay  debts,  and  any  surplus 
which  should  be  still  remaining  after  the  debts  were  paid,  he  directed  his 
executors  to  distribute,  one  third  to  his  widow  and  the  other  two  thirds 
to  his  children  in  a  prescribed  manner.  The  court,  after  laying  down  the 
general  doctrine  as  stated  in  the  text,  held  that  the  assertion  by  the  widow 
of  her  right  to  one  half  of  the  community  property  would  be  inconsistent 
with  and  antagonistic  to  the  dispositions  made  by  the  testator  to  herself 
and  to  his  children  and  grandchildren,  and  therefore  the  will  created  the 
necessity  for  an  election  by  the  widow.  While  the  opinion  in  this  care- 
fully considered  case  undoubtedly  adopts  the  general  doctrine  as  it  has 

§  505,  (b)  Affirmed,  61  Cal.  221. 


§  506  EQUITY    JURISPRUDENCE.  964 

aspects,  and  by  wliicli  the  rights  and  duties  of  the  parties 
who  are  bound  to  elect  are  affected.  The  most  important 
of  these  incidents  which  remain  to  be  considered  are  the 
following:  1.  The  persons  who  may  elect,  and  especially 
persons  under  disabilities ;  2,  Rights  and  privileges  of  those 
who  are  bound  or  entitled  to  elect;  3.  Time  of  election;  4. 
Mode  of  election,  whether  express  or  implied ;  5.  Effect  of 
an  election  upon  third  persons,  and  upon  the  parties  directly 
concerned  in  the  donation;  and  6.  The  equitable  jurisdic- 
tion in  cases  of  election.  It  will  be  found  that  in  many  of 
the  states  the  time,  and  to  a  certain  extent  the  mode,  of 
electing  in  cases  of  dower — ^by  far  the  most  frequent  occa- 
sion for  election  in  this  country — have  been  definitely  fixed 
and  regulated  by  positive  statutes;  and  in  several  of  the 
states  the  whole  subject  of  election  by  widows,  with  refer- 

been  established  by  the  overwhelming  weight  of  authority,  yet  it  is  more 
than  doubtful  whether  this  general  doctrine  was  correctly  applied  to  the 
facts.  Comparing  the  provisions  of  the  will  with  those  found  in  very 
many  of  the  decisions  based  upon  the  widow's  dower,  there  does  not  seem 
to  be  anything  in  the  language  used  by  the  testator  which  cannot,  in  pur- 
suance of  the  settled  rule  of  interpretation,  be  confined  in  its  operation 
to  the  share  of  the  community  property  capable  of  being  disposed  of  by 
him,  and  thus  no  necessary  antagonism  arises.*  See,  also,  the  following 
cases,  decided  by  the  probate  court  of  San  Francisco:  In  re  Estate  of 
Staus,  Myrick's  Prob.  Rep.  5;  In  re  Estate  of  Mumford,  Myrick's  Prob. 
Rep.  133 ;  In  re  Estate  of  Low,  Myrick's  Prob.  Rep.  148 ;  In  re  Estate  of 
Ricaud,  Myrick's  Prob.  Rep.  158;  In  re  Estate  of  Patton,  Myrick's  Prob. 
Rep.  243.d 

§  505,  (c)  For  further  instances  of  §  505,    (d)    The   recent    California 

a  sufficient   manifestation   of   intent  cases  fully  sustain  the   earlier  deci- 

to  put  to  an  election,  see  Estate  of  sionsj  to  the  effect  that  a  devise  or 

Stewart,  74  Cal.  98,  15  Pac.  445;  In  bequest  of  "all  the  property  of  which 

re    Vogt's   Estate,    154    Cal.    508,   98  I  may  die  possessed,"  or  of  "all  my 

Pac.  265;  Estate  of  Smith,  108  Cal.  property,"  or  of  "all  my  lands,"  will 

115,  40  Pac.  1037.     In  the  last  case  not   create   a  necessity   for   an   elec- 

the   testator  undertook   in   terms   to  tion.     See   Estate   of   Gwin,   77   Cal. 

dispose   of   all   the   property   of   the  313,  19  Pac.  527;  Estate  of  Gilmore, 

community,    and    declared    that    the  81  Cal.  240,  22  Pac.  655.     See,  also, 

will  was  made  with  full  knowledge  Herrick  v.  Miller,  69  Wash.  456,  12S 

of   the  property   rights   of   the    bus-  Pac.  974. 
band  and  wife,  and  with  her  consent. 


965  CONCERNING  ELECTIOlSr.  §§507,508 

€nce  to  their  dower  and  similar  rights,  is  governed  by  pre- 
cise statutory  rules.  The  doctrine  of  election  and  ques- 
tions under  it  are  by  such  legislation  wholly  withdrawn 
from  the  domain  of  equity  jurisprudence  and  jurisdiction ; 
the  rules  are  made  strictly  legal,  and  are  applied  in  tlie 
ordinary  administration  of  decedents'  estates.  These  stat- 
utes, and  the  effects  produced  by  them,  do  not,  therefore, 
properly  come  within  the  scope  and  purpose  of  a  treatise 
upon  equity  jurisprudence. 

§  507.  Who  may  Elect — Persons  Under  Disabilities. — 
Wherever  a  case  involves  the  necessity  for  an  election,  it  is 
an  elementary  rule  that  any  person  who  is  sui  juris — not 
under  disabilities — is  both  entitled  and  bound  to  elect.* 
Thus  we  have  seen  that  an  heir  at  law,  a  widow,  a  devisee, 
appointee,  or  any  other  donee,  if  the  facts  of  the  case  re- 
quire an  election,  may  and  must  elect.  The  only  particular 
persons  to  be  considered  are  those  laboring  under  disabil- 
ities or  incapacities  of  legal  status. 

§  508.  Married  Women. — The  question  has  arisen  where 
the  common-law  doctrines  concerning  the  legal  incapacities 
of  married  women  still  prevail.  There  has  been  some  con- 
flict of  opinion  with  reference  to  the  competency  of  a  mar- 
ried woman  to  elect,  so  as  to  bind  herself  and  her  property 
without  the  intervention  of  a  court,  or  the  active  participa- 
tion of  her  husband.  It  is  now  settled  that  a  married 
woman  is  competent  to  elect  by  her  own  act  without  the 
intervention  of  the  court ;  and  although  the  election  affects 
her  real  estate,  it  need  not  be  by  an  acknowledged  deed. 
There  undoubtedly  are  cases  in  which  a  reference  has  been 
directed  by  the  court  to  inquire  in  which  way  it  would  be 
most  for  the  interest  of  a  married  woman  to  elect  under 
the  circumstances;  but  the  rule  is  now  established,  that, 
at  least  prima  facie,  or  under  ordinary  circumstances,  she  is 

§  507,    (a)    The   text  is  quoted  in  Drake  v.  Wild  (Vt.),  39  Atl.  248. 


§  508  EQUITY    JURISPRUDENCE.  966 

able  to  elect  for  herself  in  a  valid  and  binding  manner. ^ 
If  her  husband  also  has  an  interest  in  the  question,  and 
differs  in  opinion  from  his  wife,  a  difficulty  would  certainly 
exist. 2  In  those  American  states  where  the  modern  legis- 
lation has  destroyed  all  interest  of  the  husband  in  his 
wife's  property,  and  has  clothed  her,  in  respect  to  it,  with 
the  capacities  and  powers  of  a  single  woman,  and  has  en- 

§  508,  1  Note  of  Mr.  Swanston  to  Gretton  v.  Haward,  1  Swanst.  409, 
413;  Barrow  v.  Barrow,  4  Kay  &  J.  409,  419;  Ardesoife  v.  Bennett,  2 
Dick.  463;  Willoughby  v.  Middleton,  2  Johns.  &  H.  344;  Anderson  v. 
Abbott,  23  Beav.  457;  Savill  v.  Savill,  2  Coll.  721;  Griggs  v.  Gibson, 
L.  R.  1  Eq.  685;  Brown  v.  Brown,  L.  R.  2  Eq.  481;  but  see  Campbell  v. 
Ingilby,  21  Beav.  567;  Cooper  v.  Cooper,  L.  R.  7  H.  L.  53,  67;  Tiernan 
V.  Roland,  15  Pa.  St.  430,  452 ;  Robinson  v.  Buck,  71  Pa.  St.  386 ;  Robert- 
son V.  Stephens,  1  Ired.  Eq.  247,  251;  McQueen  v.  McQueen,  2  Jones  Eq. 
16,  62  Am.  Dec.  205;  but  see  Kreiser's  Appeal,  69  Pa.  St.  194.» 

A  married  woman  cannot,  however,  elect  so  as  to  deal  with  or  cut  off 
her  reversionary  things  in  action :  Robinson  v.  Wheelright,  6  De  Gex,  M. 
&  G.  535,  546 ;  Whittle  v.  Henning,  2  Phill.  Ch.  731 ;  Williams  v.  Mayne, 
1  I.  R.  Eq.  519 ;  but  contra,  Wall  v.  Wall,  15  Sim.  513,  520.* 

§  508,  2  See  Griggs  v.  Gibson,  L.  R.  1  Eq.  685 ;  Wall  v.  Wall,  15  Sim. 
513,  521.  A  wife  cannot,  by  her  election,  prejudice  or  affect  her  hus- 
band's marital  rights:  Brodie  v.  Barry,  2  Ves.  &  B.  127;  see  Lady  Cavan 
V.  Pulteney,  2  Ves.  544 ;  Rutter  v.  Maclean,  4  Ves.  531. 

§  508,  (a)  See,  also,  Greenhill  v.  etraint  on  anticipation,  and  con- 
North  British  &  Mercantile  Ins.  Co.,  tained  a  covenant  by  the  wife  (then 
[1893]  3  Ch.  474;  Harle  v.  Jarman,  an  infant)  to  settle  future  property, 
[1895]  2  Ch.  419;  In  re  Tongue,  held,  that  the  wife  could  not  be  com- 
[1915]  1  Ch.  390;  In  re  Hargrove,  pelled  to  elect  between  after-ac- 
[1915]  1  Ch.  398  (these  last  two  quired  property  and  her  interest  in 
cases  concerning  gifts  with  restraint  the  settled  fund,  but  was  entitled  to 
on  anticipation,  the  donees  at  the  retain  both.  The  presumption  of  a 
time  of  election  being  unmarried) ;  general  intention  that  every  part  of 
In  re  Vardon's  Trusts,  L.  E.  31  Ch.  an  instrument  shall  take  effect, 
Div.  275,  reversing  L.  R.  28  Ch.  Div.  which  is  the  foundation  of  the  doc- 
124,  following  Smith  v.  Lucas  (Jes-  trine  of  election,  is  here  held  to  be 
sel,  M.  E.),  L.  E.  18  Ch.  Div.  531,  rebutted  by  the  inconsistent  particu- 
and  In  re  Wheatley,  L.  E.  27  Ch.  lar  intention  apparent  in  the  instru- 
Div.  606,  and  disapproving  Wil-  ment.  See,  also,  Hamilton  v.  Hamil- 
loughby  V.  Middleton,  2  J.  &  H.  344.  ton,  [1892]  1  Ch.  396,  following  In 
In  In  re  Vardon's  Trusts,  a  marriage  re  Vardon's  Trusts, 
settlement  settled  a  fund  for  the  sep-  §508,  (b)  See,  also,  Harle  t.  Jar- 
arate    use    of    the    wife    with    a   re-  man,  [1895]   2  Ch.  419. 


967  CONCERNING   ELECTIOIT.  §§509,510 

abled  her  to  manage,  control,  and  even  dispose  of  it,  it  seems 
to  follow,  as  a  necessary  consequence,  that  she  has  the  same 
ability  of  electing  on  her  own  behalf  which  is  possessed  by 
any  person  completely  sui  juris. 

§  509.  Infants. — It  is  very  clear  that  an  infant  cannot 
elect.  In  cases  where  an  infant,  if  he  had  been  an  adult, 
would  be  bound  to  elect,  the  court  has  sometimes  deferred 
the  question  of  election,  where  this  could  be  done  without 
prejudice  to  the  rights  of  other  parties,  until  the  infant 
came  of  age.^  The  ordinary  rule  is  for  the  court  to  direct 
an  inquiry  to  be  made  whether  it  is  for  the  infant's  advan- 
tage to  elect  or  not,  and  what  election  ought  to  be  made. 
In  other  words,  the  court,  as  the  result  of  a  judicial  exam- 
ination, itself  makes  the  election  on  the  infant's  behalf. 2  » 

§  510.  Lunatics. — In  like  manner,  where  the  person  en- 
titled or  bound  to  elect  is  a  lunatic,  the  court  will  make  the 
election  on  his  behalf,  after  having  ascertained,  through 
an  inquiry,  what  action  is  most  for  his  advantage ;  and  this 
is  the  rule,  even  though  the  lunatic  is  under  the  care  of  a 
committee.  1  * 

§509,  1  Streatfield  v.  Streatfield,  Cas.  t.  Talb.  176;  1  Lead.  Cas.  Eq., 
4th  Am.  ed.,  504;  Bor  v.  Bor,  2  Brown  Pari.  C,  Tomlins's  ed.,  473; 
Boughton  V.  Boughton,  2  Ves.  Sr.  12. 

§  509,  2  Mr.  Swanston's  note  to  Gretton  v.  Haward,  1  Swanst.  409,  413 ; 
Bigland  v.  Huddleston,  3  Brown  Ch,  285,  note;  Chetwynd  v.  Fleetwood, 

1  Brown  Pari.  C,  Tomlins's  ed.,  300;  Goodwyn  v.  Goodwyn,  1  Ves.  Sr. 
228;  Ebrington  v.  Ebrington,  5  Madd.  117;  Ashburnham  v.  Asbburnham, 
13  Jur,  1111;  Brown  v.  Brown,  L.  R.  2  Eq.  481;  McQueen  v.  McQueen, 

2  Jones  Eq.  16,  62  Am.  Dec.  205 ;  Addison  v.  Bowie,  2  Bland,  606,  623. 

§  510,  1  In  re  Man-iott,  2  Molloy,  516;  Kennedy  v.  Johnson,  65  Pa.  St. 
451,  3  Am.  Rep.  650.     In  this  latter  case  it  was  held  that  the  committee 

§509,    (a)    See,   also,   In   re   Lord  Abney,  182  Ala.  213,  62  South.  64; 

Chesham,    L.    R.    31     Ch.    Div.     466  Bonnie's      Guardian      v.      Haldeman 

(dictum).     This     paragraph     of     the  (Ky.),  102  S.  W.  308;  Thorn  v.  Thorn, 

text  is  quoted,  in  substance,  in  Pen-  101   Md.  444,   61   AtL   193. 
nington   v.    Metropolitan   Museum    of  §  510,  (a)  This  paragraph  is  cited 

Art    (N.    J.    Eq.),    55    Atl.    468,    by  in  Philadelphia   Trust,   S.  &  D.  Ins, 

Magie,   Ch.     See,  further,  Abney  v.  Co.  v,  Allison,  108  Me.  326,  39  L.  R. 


§511 


EQUITY    JURISPRUDENCE. 


968 


§  511.  Rights  and  Privileges  of  Persons  Bound  to  Elect. 
It  should  be  carefully  observed  that  the  rules  to  be  men- 
tioned under  this  head  were  established  in  the  absence  of 
any  legislation  upon  the  subject;  they  assume  that  there 
are  no  statutes  prescribing  when  an  election  is  necessary, 
or  the  time  within  which  an  election  must  be  made,  or  that 
the  suffering  a  certain  period  of  time  to  elapse  without  any 
affirmative  action  shall  be  regarded  as  an  election.  Stat- 
utes of  such  a  nature,  at  least  concerning  widows  for  whom 
their  husbands  have  made  testamentary  dispositions,  have 
been  enacted  in  very  many  of  the  states,  and  have  materi- 
ally affected  the  equitable  rights  and  privileges  of  those 
persons  who  are,  under  their  provision,  bound  to  elect. 

of  a  lunatic — a  widow — cannot  elect  between  the  provisions  of  her  hus- 
band's will  and  her  dower;  that  it  is  the  duty  of  the  committee  to  apply 
to  the  court  for  leave  to  elect,  and  the  court  will  only  grant  permission 
to  elect  in  favor  of  either  upon  a  due  consideration  of  the  advantages  and 
disadvantages  resulting  to  the  lunatic  from  the  choice. 


A.  (N.  S.)  39,  80  Atl.  833.  See,  in 
support  of  the  text,  Wilder  v.  Pigott, 
L.  E.  22  Ch.  Div.  263;  McDonald  v. 
Shaw,  92  Ark.  15,  28  L.  R.  A.  (N.  S.) 
657,  121  S.  W.  935;  In  re  Stevens' 
Estate,  163  Iowa,  364,  144  N.  W.  644 
(discretion  of  lower  court  in  making 
the  election  should,  as  a  rule,  not  be 
disturbed);  Miller  v.  Keown,  176  Ky. 
117,  195  S.  W.  430;  Washburn  v.  Van 
Steenwyck,  32  Minn.  336;  State  v. 
Neland,  30  Minn.  277;  Hardy  v. 
Eiehards,  98  Miss.  625,  35  L.  R.  A. 
(N,  S.)  1210,  54  South.  76  (election 
may  be  made  by  guardian,  with  the 
sanction  of  the  court)  ;  Gaster  v.  Cas- 
ter's Estate,  90  Neb.  529,  134  N.  W. 
235  (statutory  provision  that  the  sur- 
viving spouse  must  make  an  election 
within  one  year  will  not  prejudice 
an  insane  spouse  for  whom  the 
county  judge  made  no  election) ;  Pen- 
hallow  v.  Kimball,  61  N.  H.  596; 
Van     Steenwyck    v.    Washburn,    59 


Wis.  483,  48  Am.  Rep.  532,  17  N. 
W.  289.  In  Van  Steenwyck  v.  Wash- 
burn, 59  Wis.  483,  501,  48  Am,  Rep. 
532,  17  N.  W.  289,  it  was  held  that 
the  provision  of  the  Wisconsin  stat- 
ute (Rev.  Stats.,  sec.  2171)  requiring 
a  widow  to  elect  does  not  apply  to 
an  insane  widow,  and  an  election 
could  not  be  made  by  her,  nor  by  her 
guardian  in  her  behalf.  But  if 
proper  application  be  made,  the  court 
will  make  the  election  for  her;  and 
in  Washburn  v.  Van  Steenwyck,  32 
Minn.  33G,  it  was  held  that  an  elec- 
tion so  made  by  the  court  for  its 
insane  ward  binds  her  as  to  her 
dower  rights  in  lands  in  another 
state.  In  Crenshaw  v.  Carpenter,  69 
Ala.  572,  44  Am.  Rep.  539,  it  was 
held  that  under  the  Alabama  stat- 
utes (Code,  sec.  2292),  the  right  to 
elect  was  personal  to  the  widow, 
and  must  be  exercised  within  the 
time  limited  therefor,  but  if  she  be 


9G9  CONCERNING   ELECTION".  §  512 

§  512.  Subjopt  to  the  above-stated  limitations,  it  is  a 
well-settled  rule  of  equity  that  a  person  bound  to  elect  has  a 
right  to  become  fully  informed  of  and  to  know  all  the  facts 
affecting  his  choice,  and  upon  which  a  fair  and  proper  exer- 
cise of  the  power  of  election  can  depend.  To  this  end  he 
has  a  right  to  inquire  into  and  ascertain  all  the  circum- 
stances connected  with  the  two  properties, — that  is,  his  own 
and  the  one  conferred  upon  him,  and  especially  their  rela- 
tive condition  and  value;  and  he  will  not  be  compelled  to 
elect  until  he  has  made,  or  at  least  has  had  an  opportunity 
to  make,  such  an  examination  as  enables  him  to  learn  the 
truth,  1  a  It  follows  that  where  an  election  has  been  made 
in  ignorance  or  under  a  mistake  as  to  the  real  condition 

§  512,  1  Dillon  v.  Parker,  1  Swanst.  359,  381,  and  note;  1  Jacob,  505; 
1  Clark  &  F.  303;  Wake  v.  Wake,  1  Ves.  335;  Boynton  v.  Boynton,  1 
Brown  Ch.  445;  Chalmers  v.  Storil,  2  Ves.  &  B.  222;  Neuman  v.  Neuman 
1  Brown  Ch.  186;  Whistler  v.  Whistler,  2  Ves.  367,  371;  Thurston  v.  Clif- 
ton, 21  Beav.  447;  Wilson  v.  Thombuiy,  L.  R.  10  Ch.  239,  248,  249;  Doug- 
las V.  Douglas,  L.  R.  12  Eq.  617,  637;  Dewar  v.  Maitland,  L.  R.  2  Eq. 
834,  838;  Kreiser's  Appeal,  69  Pa.  St.  194;  United  States  v.  Duncan,  4 
McLean,  99;  Hall  v.  Hall,  2  McCord  Ch.  269,  280;  Snelgrove  v.  Snel- 
grove,  4  Desaus.  Eq.  274,  300;  Pinckney  v.  Pinckney,  2  Rich.  Eq.  219, 
237;  Upshaw  v.  Upshaw,  2  Hen.  &  M.  381,  390,  3  Am.  Dec.  632;  Reaves 
V.  Garrett,  34  Ala.  563;  Bradford  v.  Kent,  43  Pa.  St.  474,  484;  Macknet 

insane,  she  cannot  dissent  from  the  election   is    amply   provided   for   by 

will;  and  in  a  suit  for  dower,  brought  the    will,    and   is    hopelessly   insane, 

after  the  time  limited  by  the  statute  the  court  is  not  obliged  to  renounce 

for  her  to  elect  to  take  against  the  the  will  in  her  behalf  merely  because 

will,  that  the   court  could  not  elect  that  will  increase  the  amount  of  the 

for  her.     Whether  the  court  of  chan-  estate  which  will  go  to  her  relatives 

eery  had  jurisdiction  to  elect  for  her,  on    her    death:    Van    Steenwyck    v. 

in   a   suit   brought  within   the    time  Washburn,  59  Wis.  483,  48  Am.  Rep. 

limited  by  the  statute,  was  expressly  532,   17   N.   W.   289;    In   re   Connor's 

not  decided.     In  State  v.  Neland,  30  Estate,  254  Mo.  65,  49  L.  R.  A.   (N. 

Minn.  277,  it  was  held  that  the  court  S.)    1108,   162   S.   W.   252,  and   cases 

might  make   the   election,   or   direct  cited;  In  re  Bringhurst,  250  Pa.  St. 

her  guardian  to  do  it,  under  the  in-  9,   95   Atl.    320    (court   will   lean   in 

structions  of  the  court.     It  was  fur-  favor  of  will). 

ther  held  that  the  power  to  make  the  §  512,    (a)    The   text   is   quoted   in 

election  was  within  the  jurisdiction  Hodgkins  v.  Ashby,  56  Colo.  553,  139 

of    the    probate    court.     Where    the  Pac.  53&. 
widow    for   whom    the    court    makes 


§  512  EQUITY    JUKISPRUDENCE.  970 

and  value  of  the  properties,  or  under  a  mistake  as  to  the 
real  nature  and  extent  of  the  party's  own  rights,  such  a 
mistake  is  regarded  as  one  of  fact,  rather  than  of  law ;  the 
election  itself  is  not  binding,  and  a  court  of  equitable  powers 
will  permit  it  to  be  revoked,  unless  the  rights  of  third  per- 
sons have  intervened  which  would  be  interfered  with  by 
the  revocation.2  b    This  particular  rule  must  necessarily 

V.  Macknet,  29  N.  J.  Eq.  54;  Cox  v.  Rogers,  77  Pa.  St.  160;  Waterbury 
V.  Netherland,  6  Heisk.  512;  Dabney  v.  Bailey,  42  Ga.  521;  Richart  v. 
Richart,  30  Iowa,  465.  In  order  to  enable  him  to  ascertain  the  facts  and 
to  make  a  proper  election  in  pursuance  of  the  foregoing  rule,  a  party  may 
maintain  an  equitable  suit  to  have  all  the  necessary  accounts  of  the  proper- 
ties in  question  taken.  See  Mr.  Swanston's  note  to  Dillon  v.  Parker,  1 
Swanst.  359,  381;  citing  Butricke  v.  Broadhurst,  3  Brown  Ch.  88;  1  Ves. 
171;  Pusey  v.  Desbouverie,  3  P.  Wms.  315. 

§512,  2  Dillon  v.  Parker,  1  Swanst.  359,  381,  note;  1  Clark  &  P.  303; 
Pusey  V.  Desbouverie,  3  P.  Wms.  315;  Wake  v.  Wake,  3  Brown  Ch. 
255;  Kidney  v.  Coussmaker,  12  Ves.  136,  152;  Snelgrove  v.  Snelgrove, 
4  Desaus.  Eq.  27;  Hall  v.  Hall,  2  McCord  Ch.  269,  289;  Adsit  v.  Adsit, 
2  Johns.   Ch.  448,  451,  7  Am.  Dec.  539.     In  Macknet  v.  Macknet,  29 

§512,    (b)    The   text   is    quoted    in  year      has      elapsed);      Wohlers      v. 

In   re  McFarlin,   9   Del.    Ch.   430,   75  Griesse  (Iowa),  161  N.  W.  662;  Weis- 

Atl.  281  (widow  may  withdraw  elec-  ner   v.    Weisner,    89    Kan.    352,    131 

tion  to  take  against  will,  made  under  Pac.   608    (under  Kansas  statute,   it 

mistaken  advice  of  counsel  as  to  ex-  is  necessary  to  an  election  that  the 

tent  of  her  dower  right) ;  Tolley  v.  court  of  probate  explain  the  widow's 

Poteet,  62  W.  Va.  231,  57  S.  i^.  Sll.  rights   to   her);   Eddy   v.   Eddy,   168 

The   text   is   cited   to   this   effect   in  Fed.    590,    93    C.    C.    A.    586    (under 

Pratt  V.  Douglas,  38  N.  J.  Eq.  516,  Michigan  statutory  limitation  of  one 

539;    Standard   Oil  Co.  v.   Hawkins,  year,     fraudulent     concealment     by 

74  Fed.  395,  33  L.  E.  A.  739,  20  C.  C.  executor   whereby    widow    is    kept    in 

A.    468,    46    U.  S.  App.    115;    In    re  ignorance  of  her  right  to  elect,  and 

Wickersham's   Estate,    138   Cal.   355,  accepts  the  meager  provisions  of  the 

363,  70  Pac.  1076;   and  in  Payne  v.  will);  Egger  v.  Egger,  225  Mo.  116, 

Farley   (Tex.   Civ.  App.),   178   S.  W.  135  Am.  St.  Rep.  566,  123  S.  W.  928 

793      (wife      an      ignorant      colored  (provision  of  will  accepted  in  igno- 

woman).     See,  also,  Austell  v.  Swan,  ranee  of  legal  rights);   Hill  v.  Hill, 

74   Ga.   278;    Whitesell   v.   Strickler,  62  N.  J.  L.  442,  41  Atl.  943;  Rich  v. 

167  Ind.  602,  119  Am.  St.  Eep.  524,  Morisey,  149  N.  C.  47,  62  S.  E.  702; 

78   N.  E.  845   (where    election    pro-  Elbert   v.   O'Neill,   102   Pa.   St.   302; 

cured  by  undue  influence  of  relatives  Woodburn's  Estate,  138  Pa.  St.  606, 

and    of   a   circuit   judge,   may  bring  21    Am.    St.    Rep.    932,  21   Atl.   16; 

action  to  rescind  election,  though  the  Cooley  v.  Houston,  229  Pa.   St.  495, 


971  CONCERNING    ELECTION.  §  512 

have  been  materially  modified  by  the  statutes  in  many 
states,  which  declare  in  positive  terms  that  an  election  by 
widows  can  only  be  made  within  a  certain  prescribed  period, 
and  that  if  they  sutTer  the  time  to  elapse  without  taking  any 

N.  J.  Eq.  54,  it  was  held  that  where  an  election  by  a  widow  of  dower, 
instead  of  a  legacy  given  in  lieu  of  dower,  was  made  under  a  mistake  as 
to  her  rights  under  the  will,  and  as  to  the  amount  which  she  would  receive 
from  the  bequest,  a  court  of  equity  may  allow  her  to  revoke  her  election, 
where  no  prejudice  would  thereby  be  done  to  the  subsequently  acquired 
rights  of  others.  Such  a  mistake  is  of  fact,  rather  than  of  law.*'  In 
Cox  V.  Rogers,  77  Pa.  St.  160,  a  widow  had  by  her  conduct  unequivocally 
elected  in  favor  of  a  legacy  given  to  her  in  lieu  of  her  dower  in  a  farm 
which  her  husband  devised  to  his  son.  Held,  that  after  a  considerable 
lapse  of  time  the  election  could  not  be  disturbed,  even  although  made  in 
ignorance  of  her  right.  In  Waterbury  v.  Netherland,  6  Heisk.  512,  the 
statutory  rule  that  a  widow  failing  to  dissent  from  her  husband's  will 
within  the  prescribed  time  is  conclusively  presumed  to  have  elected  to 
take  under  the  will  was  held  to  be  compulsory  and  binding  upon  a  widow. 
Even  where  she  had  been  erroneously  advised  as  to  the  length  of  the 
period  by  one  of  the  executors, — an  eminent  lawyer, — and  had  acted  upon 
his  opinion  in  the  matter,  the  maxim,  Ignorantia  legis  non  excusat,  was 
held  to  apply.  In  Dabney  v.  Bailey,  42  Ga.  521,  it  was  held  that  a  widow 
who  had  elected  to  take  a  legacy  instead  of  dower,  under  the  erroneous 
supposition  that  her  husband's  estate  is  solvent,  may,  on  discovering  it  to 
be  insolvent,  revoke  her  election,  and  claim  her  dower.  In  Richart  v. 
Richart,  30  Iowa,  465,  the  husband's  will  gave  his  widow  one  third  of  the 
real  estate  in  lieu  of  dower.  She  elected  to  take  this  gift,  in  considera- 
tion that  all  the  heirs  should  agree  to  release  and  assign  to  her  in  addition 
one  third  of  the  personal  estate.  A  part  only  of  the  heirs  finally  consent- 
ing to  this  arrangement,  she  was  held  not  bound  by  her  election,  but  that 
she  could  relinquish  the  testamentary  gift  and  claim  her  dower.  See, 
also,  Light  v.  Light,  21  Pa.  St.  407,  and  Bradford  v.  Kents,  43  Pa.  St. 
475,  as  to  an  election  made  under  a  mistake  merely  of  the  party's  legal 
rights.* 

78  Atl.   1129    (acceptance  of  devise  •   §  512,   (c)   To  a  similar  effect,  see 

in  ignorance  of  rights  as  heirs,  no  Evans's  Appeal,  51  Conn.  435. 

election);  Payton  v.  Bower,  14  E.  I.  §512,   (d)   In  Akin  v.  Kellogg,  119 

375;   Packard  v.   De   Miranda    (Tex.  N.  Y.  441,  23  N.  E.  1046,  it  was  bold 

Civ.  App.),  146   S.  W.  211   (election  that  the  provision  of  the  New  York 

made     in     ignorance      of     material  statute  requiring   an   election   to  be 

facts) ;  Waggoner  v.  Waggoner,  111  made  within  one  year,  and  declaring 

Va.  325,  30  L.  R.  A.  (N.  S.)  644,  68  that  the  widow  should  be  deemed  to 

S.  E.  990.  have  made  election  to  take  under  the 


§  513  EQUITY    JUEISPEUDENCB.  972 

step,  they  sTiall  be  deemed  to  have  elected,  or  to  have  aban- 
doned the  right  of  electing;  and  so  the  decisions  seem  to 
hold. 

§  513.  Time  of  Election. — It  is  almost  impossible  to  sepa- 
rate the  matter  of  time  from  other  circumstances,  and  from 
the  conduct  of  the  party,  so  as  to  arrive  at  any  definite  rule. 
The  only  question  involving  the  element  of  time  is.  What 
is  the  period  during  which  the  continued  acts  of  the  party 
originally  entitled  to  elect  will  become  binding  upon  him, 
either  as  amounting  to  an  election  by  conduct,  or  as  amount- 
ing to  a  waiver  of  the  right  to  elect?  Under  the  purely 
equitable  doctrines,  unmodified  by  statute,  there  is,  as  it 
seems,  no  limit  in  point  of  time  to  a  right  to  elect,  unless  it 
can  be  shown  that  injury  would  result  to  third  persons  by 
delay. Is.  Nevertheless  it  is  clear  that  by  the  acquiescence 
and  delay  of  the  one  entitled  to  elect,  third  persons  may 
acquire  rights  in  the  property  originally  subject  to  an  elec- 

§  513,  1  Dillon  v.  Parker,  1  Swanst.  381,  386 ;  Briee  v.  Briee,  2  Molloy, 
21;  Wake  v.  Wake,  1  Ves.  335;  Butricke  v.  Brodhurst,  3  Brown  Ch.  90; 
1  Ves.  172;  Reynard  v.  Spence,  4  Beav.  103;  Sopwith  v.  Maugham,  30 
Beav.  235.  In  Wake  v.  Wake,  1  Ves.  335,  a  widow  had  for  three  years 
received  a  legacy  and  annuity  under  a  will,  in  ignorance  of  her  rights, 
and  it  was  held  that  she  had  not  thereby  elected  nor  lost  her  right  of  elect- 
ing. In  Reynard  v.  Spenee,  4  Beav.  103,  a  widow  received,  under  like 
circumstances,  an  annuity  for  five  years,  with  the  same  result.  In  Sop- 
with V.  Maugham,  30  Beav.  235,  a  widow,  in  ignorance  of  her  right  of 
dower,  had.  for  sixteen  years  enjoyed  a  provision  expressly  given  her  by 
will  in  lieu  of  dower;  but  even  after  this  great  lapse  of  time  she  was  held 
not  to  have  elected,  nor  to  have  waived  her  right  of  election. 

will    unless  within  that  time  she  en-  although  she  was  ignorant  of  the  ex- 

ter  upon  the  land  to  be  assigned  to  tent    of    her    husband's    estate,    and 

her  for  dower,  or  commences  proceed-  was    induced    to    omit    to    take    the 

ings  for  the  assignment  thereof,  has  necessary    steps    to    claim    dower    by 

the  effect  of  a  statute  of  limitations,  reason  of   the  representations   of   the 

and  she  is  at  once,  on  the  death  of  executor  and  of  the  principal  benefi- 

the  testator,  charged  with  the  duty  ciary  under  the  will  as  to  the  value 

of  informing  herself,  so  as  to  make  of  her   dower  right, 

her  election,  and  that  if  she  delays  §  513,  (a)  The  text  is  cited  to  this 

beyond    that    time,    before    bringing  effect  in  Hodgkins  v.  Ashby,  56  Colo. 

her  action,  the  court  cannot  aid  her,  553,  139  Pae.  538. 


973  CONCERNING   ELECTION.  §  513 

tion,  which  equity  will  not  suffer  to  be  disturbed  by  means 
of  a  subsequent  election.^  b  It  seems,  on  the  other  hand, 
that  a  person  having  the  right  to  compel  an  election  does 
not,  in  general,  forfeit  the  right  by  a  delay  in  its  cnforce- 
ment.3  These  purely  equitable  rules,  at  least  so  far  as 
they  affect  widows  electing  between  testamentary  benefits 
and  dower,  have  been  greatly  modified  by  legislation  in  this 
country.  In  very  many  of  the  states  statutes  have  been 
passed  which  prescribe  definite  periods  of  time  within  which 
the  right  of  election  between  dower  and  a  provision  made 
by  will  must  be  exercised.  These  statutes  are  collected  and 
arranged  according  to  their  several  types  in  the  foot-note.^ 

§513,  2  Tibbitts  V.  Tibbitts,  19  Ves.  663;  Dewar  v.  Maitland,  L.  R.  2 

Eq.  834. 

§  513,  3  Spread  v.  Morgan,  11  H.  L.  Cas.  588. 

§  513,  4  In  the  note  under  the  preceding  §  494  I  have  arranged  the 
states  in  which  statutes  have  changed  the  equitable  doctrines  concerning 
election  between  a  husband's  testamentary  gift  and  dower.  In  the  follow- 
ing states  the  doctrines  of  equity  seem  to  be  left  unaltered,  and  are  ap- 
plied either  to  the  widow's  dower,  or  to  her  statutory  portion  given  in 
place  of  dower.  In  most  of  them,  however,  a  certain  period  is  prescribed 
within  which  her  election  must  be  made,  when  such  election  is  necessary.® 

§  513,   (b)  This  paragraph  is  cited  had  allowed   the   statutory   period   to 

in  Hoggard  v.  Jordan,  140  N.  C.  610,  elapse  without  making  any  election. 

6  Ann.  Cas.  332,  4  L,  R.  A.   (N.  S.)  See    Harding   v.    Harding,    140    Ky. 

1065,  53  S.  E.  220   (for  nine  years  277,  Ann.  Cas.  1912B,  526,  130  S.  W. 

widow  acted  under  the  will,  and  her  1098     (same    result    where    survivor 

heirs  acquiesced  for  eight  years  after  dies  before  will  is  probated);  Nord- 

her  death).  quist's  Estate  v.  Sahlbom,  114  Minn. 

§  513,  (<•)  Statutory  Right  to  Elect  329,  131  N.  W.  323  (though  widow 
Is  Personal. — The  right  to  elect  un-  was  insane,  no  election  having  been 
dcr  tliese  statutes,  and  under  the  made  for  her  by  the  court  or  her 
statutes  enumerated  ante,  in  the  guardian) ;  Fergus  v.  Schiable,  91 
notes,  to  §  494,  is  purely  personal;  Neb.  180,  135  N.  W.  448  (though 
that  is  to  say,  it  cannot  be  exercised  election  made  under  mistake  as  to 
by  the  heirs,  personal  representa-  her  rights,  if  widow  took  no  steps 
tives,  devisees  or  legatees  of  the  per-  in  her  lifetime  to  have  her  elec- 
son  entitled  to  elect,  if  she  (or  he)  tion  set  aside,  administrator  can- 
dies within  the  period  limited  by  the  not  make  election  for  her);  Flynn 
statute.  The  effect  upon  persons  v.  McDermott,  183  N.  Y.  62,  111  Am, 
claiming  under  the  party  entitled  St.  Rep.  687,  5  Ann.  Cas.  81,  2  I.. 
to  elect  is  the  same  as  if  such  party  R.  A.   (N.   S.)    959,  and  note,  75  N. 


§  514  EQUITY    JURISPRUDENCE.  974 

§  514.  Mode  of  Election,  Express  or  Implied — What  Con- 
duct Amounts  to  an  Election. — Independently  of  the  stat- 
utes referred  to  in  the  foregoing  paragraph,  which  have 
altered  the  equitable  rules  on  the  subject  in  very  many 
states,  an  election  may  be  either  express  or  implied.     An 

d 

Connecticut. — Gen.  Stats.  1875,  p.  377,  sec.  4 :  ®  Widow  must,  within 
two  months  after  the  expiration  of  the  time  limited  for  the  presentation 
of  claims,  waive  the  testamentary  gift  by  a  writing.  See  Lord  v.  Lord, 
23  Conn.  327;  Hickey  v.  Hickey,  26  Conn.  261. 

Florida. — Bush's  Dig.,  p.  292,  e.  44,  sec.  1 :  '  Widow  may  dissent  from 
the  will  within  one  year  after  probate. — N.  B.  It  is  possible  that  the 
statute  may  be  so  construed  as  to  make  an  election  necessary  whenever 
any  devise  or  bequest  is  given  to  the  widow.  If  so,  this  state  should  be- 
long in  the  first  class,  under  §  494,  ante. 

lowa.—l  Miller's  Rev.  Code,  1880,  p.  624,  sec.  2452 :  Widow  must  elect 
within  six  months  after  notice  of  the  provisions  of  the  will.  As  to  when 
election  is  or  is  not  necessary,  see  Metteer  v.  Wiley,  34  Iowa,  215 ;  Corriel 
V.  Ham,  2  Iowa,  552;  Sully  v.  Nebergall,  30  Iowa,  339;  Clark  v.  Griffith 
4  Iowa,  405;  McGuire  v.  Brown,  41  Iowa,  650.«     Election  by  conduct 

E.   931;    In  re   McClintock's   Estate,  acted  to  his  detriment:   In  re  Dun 

240  Pa.  543,  87  Atl.  703.     Moreover,  phy's  Estate,  147  Cal.  95,  81  Pac.  315 

since    the    right    of   election    is   per-  Colorado. — The  will  of  the  husband 

sonal,    creditors    of    the    person    en-  cannot  deprive  the  wife  of  her  statu 

titled   to  elect  cannot  force  him   to  tory  share  of  his  estate,  without  her 

make  an  election,  nor  object  to  the  consent  in  writing  executed  after  his 

result  of  the  exercise  of  his  discre-  death:   Rev.  Stats.  1908,  §7070.     If 

tion;  Robertson  v.  Schard,  142  Iowa,  Bhe  dies  without  giving  such  consent, 

500,  134  Am.  St.  Rep.  430,  119  N.  W.  her    heirs    take    her    statutory   estate, 

529;   Bains   v.   Globe   Bank   &  Trust  and    not   under   the   will:    Hodgkins 

Co.,  136  Ky.  332,  136  Am.  St.  Rep.  v.  Ashby,  56  Colo.  553,  139  Pac.  538. 

263,  124  S.  W.  343;  Pike  County  v.  §513,   (e)  Connecticut.— Gen.  StSits. 

Sowards,  147  Ky.  37,  143  S.  W.  745  1888,  sec.  621. 

(husband  elected   in  favor   of  will,  §  513,      (t)      Florida. — McClellan's 

which  left  him  nothing);  In  re  Flem-  Dig.  1881,  p.  475,  c.  95,  sec.  1. 

ing's   Estate,   217   Pa.   610,    10   Ann.  §513,    (e)    Jowo.— McClain's' Code 

Cas.  826,  11  L.  R.  A.  (N.  S.)  379,  66  1888,  sec.  3656.     See,  also.  Potter  v. 

Atl.  874.  Worley,  57  Iowa,  66,  7  N.  W.  685,  10 

§513,   («l)   CaZi/orma.— Election  of  N.  W.  298;  Blair  v.  Wilson,  57  Iowa, 

widow  may  be  made  at  any  time  be-  148,  10  N.  W.  327;  Snyder  v.  Miller, 

fore   decree   of  distribution.     She  is  67  Iowa,  261,  25  N.  W.  240;  Daugh- 

not  estopped  from  electing  to  take  erty  v.  Daugherty,  69  Iowa,  679,  29 

under  the  will  by  a  written  notice  N.    W.    778;    Estate    of    Blaney,    73 

to  the  contrary,  on  which  no  one  has  Iowa,  114,  34  N.  W.  768;  Howard  v. 


975  CONCERNING   ELECTION.  §  514 

express  election  is  made  by  some  single  unequivocal  act  of 
the  party,  accompanied  by  language  showing  his  intention 
to  elect,  and  the  fact  of  his  electing  in  a  positive,  unmistak- 
able manner, — as,  for  example,  by  the  execution  of  a  written 

See  Stoddard  v.  Cuteompt,  41  Iowa,  329.  The  statute  requires  action  on 
her  part:  Kyne  v.  Kyne,  48  Iowa,  21,  24;  and  does  not  apply  to  personal 
property:  In  re  Davis's  Estate,  36  Iowa,  24. 

Kentucky.— Gen.  Stats.  1S73,  p.  373,  sec.  12 :  ^  Election  against  the  will 
must  be  within  one  year  after  probate.  See  Dawson  v.  Hayes,  1  Met. 
(Ky.)  461;  Barnett's  Adm'r  v.  Barnett,  1  Met.  (Ky.)  257,  258,  259; 
Worsley's  Ex'r  v.  Worsley,  16  B.  Mon.  470. 

New  Hampshire. — Gen.  Stats.  1867,  p.  358,  sec.  13:  Widow  may  elect 
against  the  will  by  a  writing,  but  the  time  within  which  she  must  so  elect 
is  not  prescribed.* 

New  York. — 1  Rev.  Stats.,  p.  741,  sees.  13,  14:  Widow  is  deemed  to 
have  elected  to  take  under  the  will,  unless  within  one  year  after  her  hus- 
band's death  she  begins  proceedings  to  recover  her  dower,  or  enters  on 
the  lands  assigned  for  dower.  See  Lewis  v.  Smith,  9  N.  Y.  504,  511  61 
Am.  Dec.  706;  Jackson  v.  Churchill,  7  Cow.  287,  17  Am.  Dec.  514;  Haw- 
ley  V.  James,  5  Paige,  318,  447;  Bull  v.  Church,  5  Hill,  206;  Church  v. 
Bull,  2  Denio,  430,  43  Am.  Dec.  754;  Leonard  v.  Steele,  4  Barb.  20.-I 

Watson,  76  Iowa,  229,  41  N.  W.  45.  sufficient);    Thorpe    v.    Lyones,    160 

Under  the  statute  in  operation  vmtil  Iowa,  415,  142  N.  W.  82;  In  re  Ste- 

1897  (Code  1873,  §  2452),  the  widow's  vens'   Estate,   163   Iowa,   364,   144  N. 

share  was  not  affected  by  the  will  W.    644.     By    the    present    statute 

of  her  husband  unless  she  consented  (Code,  §  3376),  the  system  is  entirely 

thereto  within  six  months  of  notice  changed,     and    Iowa     now    belongs 

of  its  contents;  in  other  words,  her  among    the    states    enumerated    ante, 

inaction    was     an    implied     election  note  to  §  494. 

against  the  will:   Warner  v.  Hamill,  §513,   (l»)    Kentucky. — Gen.   Stats. 

134  Iowa,  279,  111  N.  W.  939;  Jones  1887,    c.    31.     See,    also,    Mercer    v. 

v.  Jones,  137  Iowa,  382,  114  N.  W.  Smith,  32   Ky.  Law  Eep.   1003,   ]07 

1066    (widow    dies   without   election  S.   W.   1196;    Smith   v.   Perkins     148 

and    devises   her   distributive  share);  Ky.   387,   146   S.   W.   758;   Franzell's 

Mobn   V.   Mohn,   148  Iowa,   288,  126  Ex'r  .v.   Franzell,   153    Ky.   171,   154 

N.  W.  1127;  Kierulff  v.  Harlan,  150  S.  W.  912  (executor  liable  to  widow 

Iowa,  671,  130  N.  W.  789;  Thorpe  v.  if  he  disposes  of  her  property  within 

Lyones,  160  Iowa,  415,  142  N.  W.  82;  the  year). 

In  re  Stevens'  Estate,  163  Iowa,  364,  §513,   (»)   New  Eainpshire. — If  an 

144  N.  W.  644.     The  consent  to  the  election    is    necessary,    it    must    be 

will    must   be    a    matter   of   record:  made  seasonably;  Hovey  v.  Hovey, 

Jones  v.   Jones,   137   Iowa,   382,   114  61  N.  H.  599. 

N.   W.   1066;     Mohn    v.    Mohn,    148  §513,      (J)     New     York. — 4     Kev. 

Iowa,  288,  126  N.  W.  1127  (election  Stats.,  8th  ed.,  p.  2455.     See  Akin  v. 


§  515  EQUITY    JURISPRUDENCE.  976 

instrument  declaring  the  election.*  As  the  election  hecomes 
fixed  by  such  a  definite  act,  and  at  such  precise  time,  no 
questions  concerning  it  can  arise. 

§  515.  Implied. — An  election  may  also  be  implied — that 
is,  inferred — from  the  conduct  of  the  party,  his  acts,  omis- 
sions, modes  of  dealing  with  either  property,  acceptance  of 
rents  and  profits,  and  the  like.  Courts  of  equity  have  never 
laid  down  any  rule  determining  for  all  cases  what  conduct 
shall  amount  to  an  implied  election,  but  each  case  must  de- 
pend in  great  measure  upon  its  own  circumstances. ^  *     The 

Rliode  Island.— Gen.  Stats.  1872,  p.  374,  sec.  11 :  ^  Widow  must  elect 
against  the  will  by  a  writing  within  one  year  after  probate. 

Vermont.— Gen.  Stats.  1862-70,  p.  412,  sees.  5,  Q:^  Widow  may  elect 
within  eight  months  after  probate. 
m 

§  515,  1  See  note  to  Dillon  v.  Parker,  1  Swanst.  359,  381,  382,  and 
cases  there  cited;  Padbury  v.  Clark,  2  Macn.  &  G.  298,  306,  307;  Whit- 
ridge  V.  Parkhurst,  20  Md.  62,  72.  In  Padbury  v.  Clark,  2  Macn.  &  G. 
298,  Lord  Cottenham  said:  "If  a  party,  being  bound  to  elect  between  two 
properties,  not  being  called  upon  so  to  elect  by  the  other  parties  inter- 
ested, continues  in  the  receipt  of  the.  rents  and  profits  of  both,  such  re- 
ceipt, affording  no  proof  of  preference,  cannot  be  an  election  to  take  the 
one  and  reject  the  other;  and  so  if  the  other  property  be  under  circum- 
stances that  it  does  not  yield  rent  to  be  received  by  the  party  liable  to 

Kellogg,  119  N.  Y.  441,  23  N.  E.  1046  own  right  and  also  makes  provision 

(has    effect   of   a   statute   of   limita-  for  her  by  his  will:   Pence   v.  Life, 

tions).  10-i  Va.  518,  521,  52  S.  E.  257;  Wag- 

§513,     (k)     Ehode     Island. — Pub.  goner  v.  Waggoner,  111  Va.  325,  30 

Stats.   1882,  p.  472,  sec.  11.     See  In  L,  E.  A.  (N.  S.)  644,  68  S.  E.  990. 
re  Cook,  30  R.  I.  494,  76  Atl.  356.  §514,   (a)  This  paragraph  is  cited 

§513,     (1)     Vermont. — Rev.    Laws  in   In  re  Peck's  Estate,  80  Vt.  469, 

1880    sec.   2219.     See   In   re   Baker's  68    Atl.    433    (election    according   to 

Estate,  81  Vt.  505,  71  Atl.  190.  the  mode  prescribed  by  the  statute 

§513,   (n»)     Virginia. — Code     1904,  is,  in  law,  an  express  election).     In 

§  2271,  requiring  that  a  widow  must  Re  Dunphy's  Estate,  147  Cal.  95,  81 

renounce,  if  at  all,  the  provisions  of  Pae.  315,  it  is  held  that  the  widow 

her   husband's   will   within   one  year  is    not    estopped    from    electing    to 

after   its   admission   to   probate,   ap-  take    under    the    will    by    a    written 

plies  to  election  between  provisions  notice  to  the  contrary,  on  which  no 

made   by   the  law   and  by   the   will,  one  has  acted  to  his  detriment, 
and  not  to  the  ease  where  the   hus-  §  515,    (a)    The   text   is   quoted  in 

band  undertakes  to  dispose  of  prop-  Owens  v.  Andrews,  17  N.  M.  597,  49 

erty   belonging   to   his   wife   in  her  L.  R.  A.  (N.  S.)  1072,  131  Pac.  1004. 


977  CONCERNING    ELECTION".  §  515 

following  rules,  however,  have  been  fairly  settled  by  the 
courts  as  guides  in  determining  the  general  question.  To 
raise  an  inference  of  election  from  the  party's  conduct 
merely,  it  must  appear  that  he  knew  of  his  right  to  elect, 
and  not  merely  of  the  instrument  giving  such  right,^  and 
that  he  had  full  knowledge  of  all  the  facts  concerning  the 
properties.^  ^  As  an  election  is  necessarily  a  definite  choice 
by  the  party  to  take  one  of  the  properties  and  to  reject  the 
other,  his  conduct,  in  order  that  an  election  may  be  inferred, 
must  be  done  with  an  intention  to  elect,  and  must  show  such 
an  intention.'^  The  intention,  however,  may  be  inferred 
from  a  series  of  unequivocal  acts.'*  ^  In  applying  these  gen- 
eral rules,  the  following  particular  conclusions  as  to  what 

elect,  but  such  party,  particularly  if  with  the  knowledge  and  consent  of 
the  one  who  is  entitled  to  call  for  such  election,  deal  with  this  property 
as  his  own,  it  would  seem  that  such  acts  ought  to  be  equally  unavailable 
to  prove  an  actual  election;  for  in  both  cases  there  is,  as  far  as  circum- 
stances will  admit,  an  equal  dealing  with  the  two  properties,  and  there- 
fore an  absence  of  proof  of  any  intention  to  elect  the  one  and  reject  the 
other." 

§  515,  2  Edwards  v.  Morgan,  1  Bligh,  N.  S.,  401 ;  Briscoe  v.  Briscoe, 
1  Jones  &  L.  334,  7  I.  R.  Eq.  123 ;  Sweetman  v.  Sweetman,  2  I.  R.  Eq.  141. 

§  515,  3  Sopwith  v.  Maugham,  30  Beav.  235 ;  Worthington  v.  Wiggin- 
ton,  20  Beav.  67 ;  and  see  ante,  §  512,  and  cases  cited  in  note. 

§  515,  4  Spread  v.  Morgan,  11  H.  L.  Cas.  588 ;  Dillon  v.  Parker,  1 
Swanst.  359,  380,  387;  Padbury  v.  Clark,  2  Macn.  &  G.  298,  306,  307; 

§515,    (b)    The   text   is    quoted   in  §515,    (c)    The   text   is   quoted  in 

Owens   V.    Andrews,   17   N.   M.   597,  Showalter's  Ex'rs  v.  Showalter,  107 

49  L.  B.  A.    (N.   S.)   1072,   131  Pac.  Va.   713,   60   S.  E.  48;   Waggoner  v. 

1004     (widow     did     not     have     full  Waggoner,  111  Va.  325,  30  L.  R.  A. 

knowledge     of     her     rights);     She-  (N.  S.)  644,  68  S.  E.  99a 

-rralter's  Ex'rs  v.  Showalter,  107  Va.  §515,    (d)    The  text  is  quoted  and 

713,  60  S.  E.  48  (widow's  continuing  the    rules    there    stated    adopted,    in 

to  live  on  the  tract  devised  to  her,  Burroughs  v.  De  Gouts,  70  Gal.  371, 

and  selecting  certain  personal  prop-  11  Pac.   734;   In  re   Smith,  108   Gal. 

erty  bequeathed  to  her,  are  equivo-  115,  120,  40  Pac.  1037;  and  cited,  in 

cal  acts,  in   the  absence   of  proof   of  Morse   v.   Hackensack   Sav.   Bk.,  47 

knowledge   of    the    facts    or    of   her  N.  J.  Eq.  279,  12  I*.  R.  A.  62,  20  Atl. 

rights);     Waggoner     v.     Waggoner,  961.     See,   also.  In   re  Peck's  Estate, 

111  Va.  325,  30  L.  R.  A.  (N.  S.)  644,  80  Vt.  469,  68  Atl.  433. 
68  S.  E.  990. 
1—63 


§  515  EQUITY   JURISPRUDENCE.  978 

conduct  may  or  may  not  amount  to  an  election  seem  to  have 
been  definitely  reached :  Where  a  person,  bound  to  elect  be- 
tween two  properties,  continues  in  possession,  or  enjoy- 
ment, or  receipt  of  the  rents  and  profits  of  both,  without 
being  called  upon  by  the  other  party  interested  to  elect,  this 
conduct  indicates  no  intention  of  taking  one  and  rejecting 
the  other,  and  does  not  therefore  amount  to  an  election.^  ® 
Taking  the  interest  or  income  of  one  fund  or  property  only 
is,  in  general,  an  election  to  take  the  fund  or  property  pro- 
ducing the  interest  or  income.  ^  Settling  one  of  two  funds, 
between  which  the  settlor  is  bound  to  elect,  is  an  election 
to  take  the  fund  so  settled. ''  Suffering  a  recovery  of  lands 
devised  in  tail  is  an  election  to  take  those  lands. ^  A  recital 
in  a  deed  may  amount  to  an  election  or  be  evidence  of  an 
election.9  I  have  collected  in  the  foot-note  the  important 
cases  which  deal  with  the  question  of  an  election  implied 
from  the  conduct  of  the  party  who  is  entitled  or  bound  to 
elect.  1^     The  rule  seems  to  be  plainly  deducible  from  the 

Worthington  v.  Wigginton,  20  Beav.  67;  Campbell  v.  Ingilby,  21  Beav. 
582;  Stratford  v.  Powell,  1  Ball  &  B.  1;  Edwards  v.  Morgan,  McClel. 
541,  13  Price,  782,  1  Bligh,  N.  S.,  401. 

§  515,  5  Padbury  v.  Clark,  2  Macn.  &  G.  298,  306,  307;  Spread  v.  Mor- 
gan, 11  H.  L.  Cas.  588;  Whitridge  v.  Parkhiirst,  20  Md.  62,  72. 

§  515,  6  Ardesoife  v.  Bennett,  2  Dick.  463 ;  Dewar  v.  Maitland,  L.  R. 
2  Eq.  834. 

§  515,  7  Briscoe  v.  Briscoe,  1  Jones  &  L.  334. 

§  515,  8  Giddings  v.  Giddings,  3  Russ.  241. 

§  515,  9  Dillon  v.  Parker,  1  Jacob,  505;  1  Clark  &r.  303. 

§515,  10  Dillon  v.  Parker,  1  Swanst.  359,  381,  382,  and  note;  Wilson 
V.  Thornbury,  L.  R.  10  Ch.  239,  248,  249 ;  Dewar  v.  Maitland,  L.  R.  2  Eq. 
834;  Padbury  v.  Clark,  2  Macn.  &  G.  298;  Brice  v.  Brice,  2  Molloy,  21; 
Giddings  v.  Giddings,  3  Russ.  241;  Miller  v.  Thurgood,  33  Beav.  490; 
Fitzsimmons  v.  Fitzsimmons,  28  Beav.  417;  Honeywood  v.  Forster,  30 
Beav.  14;  Howells  v.  Jenkins,  2  Johns.  &  H.  706;  1  De  Gex,  J.  &  G.  617; 

§  515,  (e)   The  text  is  cited  to  this  See,  also,  Martin  v,  Martin,  80  N.  J. 

effect  in  Madden  v.  Louisville,  N.  O.  Eq.  359,  84  Atl.  619;  Bebcut  v.  Quick, 

&  T.  R'y  Co.,  66  Miss.  258',  6  South.  81  Ohio  St.  196,  90  N.  E.  162   (donee 

181.     The   text    is    quoted    in    Wag-  makes     a     claim     both     under     and 

goner  v.  Waggoner,  111  Va.  325,  30  against  terms  of  the  will), 
li,  K.  A.  (N.  S.)    644,   68   S.  E.   990. 


979  CONCERNING   ELECTION.  §  516 

American  cases  which  are  placed  in  the  note,  that  where 
a  widow  is  required  to  elect  between  a  testamentary  pro- 
vision in  her  favor  and  her  dower,  any  unequivocal  act  of 
dealing  with  the  property  given  by  the  will  as  her  own,  or 

Spread  v.  Morgan,  11  H.  L.  Cas.  588;  Reynard  v.  Spence,  4  Beav.  103; 
Sopwith  V.  Maugham,  30  Beav.  235;  Wake  v.  Wake,  1  Ves.  335;  Butricke 
V.  Brodhurst,  3  Brown  Ch.  90,  1  Ves.  172;  Tibbitts  v.  Tibbitts,  19  Ves. 
663;  Whitridge  v.  Parkhurst,  20  Md.  62,  72;  Marriott  v.  Sam  Badger, 
5  Md.  306;  Upshaw  v.  Upshaw,  2  Hen.  &  M.  381,  3  Am.  Dec.  632;  Caston 
V.  Caston,  2  Rich.  Eq.  1;  Binst  v.  Dawes,  3  Rich.  Eq.  281;  Bradford  v. 
Kent,  43  Pa.  St.  474,  484;  Anderson's  Appeal,  36  Pa.  St.  476;  Adlum  v. 
Yard,  1  Rawle,  163,  171,  18  Am.  Dec.  608;  Heron  v.  Hoffner,  3  Rawle, 
393,  396;  Cauffman  v.  Cauffman,  17  Serg.  &  R.  16,  25;  Wilson  v.  Hamil- 
ton, 9  Serg.  &  R.  424;  O'DriscoU  v.  Roger,  2  Desaus.  Eq.  295,  299;  Snel- 
grove  V.  Snelgrove,  4  Desaus.  Eq.  274,  300;  Shaw  v.  Shaw,  2  Dana,  342; 
Clay  V.  Hart,  7  Dana,  1,  6;  Watkins  v.  Watkins,  7  Serg.  283;  Reaves  v. 
Garrett,  34  Ala.  563;  Kinnaird  v.  Williams's  Adm'r,  8  Leigh,  400,  31 
Am.  Dec.  658;  Stark  v.  Hunton,  1  N.  J.  Eq.  217,  227;  Sloan  v.  Whitaker, 
58  Ga.  319;  Sewell  v.  Smith,  54  Ga.  567;  Stoddard  v.  Cutcompt,  41  Iowa, 
329;  Cox  v.  Rogers,  77  Pa.  St.  160;  Camden  Mut.  Ins.  Co.  v.  Jones,  23 
N.  J.  Eq.  171;  Crocker  v.  Beal,  1  Low.  416.« 

§515,     («)     See,    also.    Estate    of  can,  67  Ga.  61;  Forester  v.  Watford, 

Stewart,    74    Cal.    98,    15   Pac   445;  67  Ga.  508;  Koelling  v.  Foster,  254 

Estate  of  Smith,   108  Cal.  115,  121,  111.    494,    98   N.   E.    952    (widow  es- 

40  Pac.  1037;  Williams  v.  Williams,  topped  to  elect  against  the  will  by 

170   Cal.    625,    151    Pac.    10    (where  enjoyment    of    the    devise    for    seven 

husband  was  entitled  absolutely  to  years) ;   Pace  v.  Pace,  271  111.   114, 

all  his  wife's  property,  but  probated  110   N.    E.    878    (merely    acting    as 

her     will,     making     him     executor,  executrix  not  an  election  in  favor  of 

under  which  he  had  only  a  life  es-  will) :  Young  v.  Biehl,  166  Ind.  357, 

tate,  and  acted  for  some  time  under  77  N.  E.  406;  In  re  Hamilton's  Es- 

the    decree   of    distribution,  he   was  tate,   148  Iowa,  127,  126  N.  W.  776 

not    estopped    to    claim    the    whole  (receipt    of    allowance    for    support 

estate,   the   rights   of   third   persons  not    bar    to    claiming   provisions    of 

not    having    intervened) ;    Hodgkins  will) ;  Pirtle  v.  Pirtle,  84  Kan.  782, 

v.  Ashby,  56  Colo.  553,  139  Pac,  538  115     Pac.     543     (accepting    benefits 

(accepting     widow's     allowance     is  under  will);   Williams  v.   Campbell, 

equivocal;     and     joining     with     the  85  Kan.  631,  118  Pac.  1074  (same); 

executor    in    proceedings    to    obtain  Egger  v.   E'gger,    225   Mo.    116,   135 

construction  of  the  will  is  necessary  Am.   St.    Rep.    566,    123    S.   W.   928; 

in  order  to  enable  her  to  elect  in-  Zook   v.   Welty,   156   Mo.   App.   703, 

telligently) ;  Wright  v.  Cella,  9  Del.  137  S.  W.  989;  Cobb  v.  Macfarland, 

Ch.   188,   85   Atl.   1078;    Churchill  v.  87   Neb.   408,   127   N.   W.   377;    Cun- 

Eee,  66  Ga.  621;  Johnston  v.  Dun-  ningham's  Estate,   137   Pa.   St.   621, 


§  516  EQUITY   JURISPRUDENCE.  980 

the  exercise  of  any  unmistakable  act  of  ownership  over  it, 
if  done  with  knowledge  of  her  right  to  elect,  and  not  through 
a  clear  mistake  as  to  the  condition  and  value  of  the  prop- 
erty, will  be  deemed  an  election  by  her  to  take  under  the 
will,  and  to  reject  her  dower.s 

§  516.  Effects  of  an  Election. — The  effects  of  an  election 
when  once  made  are  to  be  considered  with  reference  to  two 
different  classes  of  persons,  namely,  those  who  succeed,  or 
represent,  or  derive  title  from  the  party  making  the  elec- 
tion, and  those  who  are  originally  interested  in  the  prop- 
erty subject  to  the  election  by  reason  of  being  beneficiaries 
under  the  instrument  of  donation,  and  whose  interests  are 
therefore  directly  affected  by  the  election.  Where  an  elec- 
tion is  once  made  by  the  party  bound  to  elect,  either  ex- 
pressly or  inferred  from  his  conduct,  it  binds  not  only 
himself,  but  also  those  parties  who  claim  under  him,  his 
representatives  and  heirs. ^  «•     Wherever  the  person  bound 

§  516,  1  Earl  of  Northumberland  v.  Earl  of  Aylesford,  Amb.  540,  657; 
Dewar  v.  Maitland,  L.  R.  2  Eq.  834;  Stratford  v.  Powell,  1  Ball  &  B.  1; 
Ardesoife  v.  Bennett,  2  Dick.  463;  and  see,  with  respect  to  acts  binding 


21  Am.  St.  Rep.  901,  20  Atl.  714 
Payton  v.  Bowen,  14  R.  I.  375 
Penn  v.  Guggenheimer,  76  Va.  839 


538;  Benedict  v.  Wilmarth  (Fla.), 
35  South.  84.  See,  also,  Prince  v. 
Prince,  64  Wash.  552,  117  Pac.  255; 


Cooper  V.  Cooper,  77  Va.  198;  Prince  Thorpe    v.    Ljones,    160    Iowa,    415, 

V.   Prince,    64    Wash.   552,    117    Pac.  142  N.  W.  82;  Pace  t.  Pace,  271  111. 

255;  Pence  v.  Life,  104  Va.  518,  52  114,    110    N.    E.    878;    Williams    t. 

S.  E.  257  (testator  devised  to  widow  Williams,  170  Cal.  625,  151  Pac.  10. 

a  life  estate  in  her  own  lands,  and  §  516,   (a)    The   text  is   quoted  in 

she  conveyed  a  part  in  fee;  held,  an  Penn  v.   Guggenheimer,   76   Va.  839, 

election  to  stand  on  her  own  title).  851.     That     an      election      formally 

§  515,    (g)    The   text   is    quoted   in  made   in   favor   of   the   will   in   one 

Penn  v.  Guggenheimer,   76  Va.  839,  state  ia  an  estoppel  to  claim  against 

S50;  Burroughs  v.  De  Gouts,  70  Cal.  the  will  in  another  state,  see  Mech- 

361,   11   Pac.   734;    In   re   Smith,   108  ling   v.    McAllister,    135   Minn.    357, 

Cal.  115,  121,  40  Pac.  1037  (no  elec-  L.  E.  A.  1917C,  504,  160  N".  W.  1016; 

tion  manifested).     A  widow,  by  be-  Martin  v.  Battey,  87  Kan.  582,  Ami. 

coming   executrix   of   her   husband's  Cas.    1914A,    440,    125    Pac.    88,   and 

will,    is    not    thereby    estopped    to  cases  cited. 

afterwards  make  an  election :   Estate  Right   to   Elect  is   Personal. — Soa 

of   Gwin,  77   Cal.   313,   19  Pac.   527;  ajite,  note  to  §  513. 
Pratt  V.  Douglas,  38  N.  J.  Eq.  516, 


981  CONCERNING   ELECTION.  §  517 

to  elect  is  entitled  only  to  a  life  estate  in  tlie  property,  or  to 
any  other  prior  interest,  his  election  does  not  bind  the  one 
entitled  in  remainder  to  the  same  property.^  And  where 
several  individuals  constituting  a  class — as  the  next  of  kin — • 
are  entitled  to  elect,  each  has  a  separate  right  of  election; 
an  election  by  any  of  them  does  not  affect  the  rights  of 
others. 3 

§  517.  The  other  parties  interested  as  donees  under  the 
instrument  creating  the  necessity  for  an  election  are  af- 
fected by  it,  when  made,  in  the  following  manner:  If  the 
person  on  whom  the  duty  of  electing  rests  elects  to  take 
in  conformity  with  the  will  or  other  instrument  of  donation, 
he  thereby  relinquishes  his  own  property,  and  must  release 
or  convey  it  to  the  donee  upon  whom  the  instrument  had 
assumed  to  confer  it.^  If  he  elects  against  the  will  or  other 
instrument  of  donation,  he  thereby  retains  his  own  prop- 

upon  the  representatives,  Tomkyns  v.  Ladbroke,  2  Ves.  Sr.  593 ;  Worth- 
ington  V.  Wiginton,  20  Beav.  67;  Sopwith  v.  Maugham,  30  Beav.  235, 
239;  Whitley  v.  Whitley,  31  Beav.  173.  Where  the  party  bound  to  elect 
has  not  definitely  elected  in  his  lifetime,  his  representatives  who  have 
accepted  benefits  under  the  instrument  of  donation,  but  have  not  them- 
selves explicitly  elected,  may,  if  they  can  offer  compensation,  and  can 
place  the  other  party  in  the  same  situation  as  if  such  benefits  had  not 
been  accepted,  renounce  those  benefits,  and  determine  the  question  of  elec- 
tion for  themselves:  Dillon  v.  Parker,  1  Swanst.  385;  Moore  v.  Butler, 
2  Schoales  &  L.  268;  Tysson  v.  Benyon,  2  Brown  Ch.  5. 

§516,  2  Ward  v.  Baugh,  4  Ves.  623;  Long  v.  Long,  5  Ves.  445;  and 
see  Hutchinson  v.  Skelton,  2  Macq.  492,  495. 

§  516,  3  Fytche  v.  Fytche,  L.  R.  7  Eq.  494;  Ward  v.  Baugh,  4  Ves.  623. 

§  517,   (a)    But    without    such    re-  St.  543.     When  a  beneficiary  under 

lease   or   conveyance   the   donee   ob-  a  will  is  put  to  an  election  between 

tains   only   an   equitable   interest   in  the    gift    and    a    claim    against    the 

the  property  of  the  person  who  has  estate,  his  acceptance  of  the  gift  is 

made  the  election;  an  interest  which  a  satisfaction  of  the  claim,  and  it  is 

may   be   defeated   by   a   conveyance  immaterial   whether   what   he   takes 

of   the   legal    estate    to    a    bona  fide  turns   out  to   be   of   greater   or  less 

purchaser.     The  statutory  notice   of  value    than    his    claim:    Gaulfield    v. 

an   election   to   take   under   the   will  Sullivan,    85   N.   Y.    153.     See,    also, 

does  not   operate   as    a   conveyance.  Lee    v.    Tower,    124   N.   Y.    370,    26 

See  Hibbs  v.  Insurance  Co.,  40  Ohio  N.  E.  913. 


§  517  EQUITY    JUEISPEUDENCE.  982 

erty,  and  must  compensate  the  disappointed  donee  out  of 
the  estate  given  to  himself  by  the  donor.  A  court  of  equity 
will  then  sequester  the  benefits  intended  for  the  electing 
beneficiary,  in  order  to  secure  compensation  to  those  per- 
sons whom  his  election  disappoints. ^  ^  This  rule  is  applied 
in  many  of    the  American  cases  cited  below  to  elections 

§  517,  1  See  this  rule  discussed  ante,  in  §§  467,  468;  Gretton  v.  Haward, 
1  Swanst.  409,  423,  433,  and  note  by  Mr.  Swanston;  Rogers  v.  Jones,  3 
Ch.  Div.  688,  689;  Pickersgill  v.  Rodger,  5  Ch.  Div.  163,  173;  Howells 
V.  Jenkins,  1  De  Gex,  J.  &  S.  617,  619;  Spread  v.  Morgan,  11  H.  L.  Cas. 
588;  Streatfield  v.  Streatfield,  Cas.  t.  Talb,  176;  Bor  v.  Bor,  3  Brown 
Pari.  C,  Tomlins's  ed.,  167;  Ardesoife  v.  Bennett,  2  Dick.  465;  Lewis  v. 
King,  2  Brown  Ch.  600 ;  Freke  v.  Barrington,  3  Brown  Ch.  284 ;  Whistler 
V.  Webster,  2  Ves.  372;  Ward  v.  Baugh,  4  Ves.  627;  Lady  Caven  v.  Pul- 
teney,  2  Ves.  560;  Blake  v.  Bunbury,  1  Ves.  523;  Welby  v.  Welby,  2 
Ves.  &  B.  190,  191 ;  Dashwood  v.  Peyton,  18  Ves.  49 ;  Tibbitts  v.  Tibbitts, 
Jacob,  317;  Lord  Rancliffe  v.  Parkyns,  6  Dow,  179;  Ker  v.  Wauehope, 
1  Bligh,  25;  Padbury  v.  Clark,  2  Macn.  &  G.  298;  Greenwood  v.  Penny, 
12  Beav.  403;  Codrington  v.  Lindsay,  L.  R.  8  Ch.  578;  Griggs  v.  Gibson, 
L.  R.  1  Eq.  685;  Palmer  v.  Wakefield,  3  Beav.  227;  Giddings  v.  Giddings, 
3  Russ.  241;  Cauffman  v.  Cauffman,  17  Serg.  &  R.  16,  24,  25;  Philadel- 
phia V.  Davis,  1  Whart.  490,  502;  Stump  v.  Findlay,  2  Rawle,  168,  174, 
19  Am.  Dec.  632;  Lewis  v.  Lewis,  13  Pa.  St.  79,  82,  53  Am.  Dec.  443; 
Van  Dyke's  Appeal,  60  Pa.  St.  490;  Sandoe's  Appeal,  65  Pa.  St.  314; 
Key  V.  Griffen,  1  Rich.  Eq.  67;  Marriott  v.  Sam  Badger,  5  Md.  306; 
Maskell  v.  Goodall,  2  Disn.  282;  Roe  v.  Roe,  21  N.  J.  Eq.  253;  Estate  of 
Delaney,  49  Cal.  77;  Tiernan  v.  Roland,  15  Pa.  St.  430,  451;  Wilbanks 
V.  Wilbanks,  18  111.  17;  Jennings  v.  Jennings,  21  Ohio  St.  56;  Allen  v. 
Hannum,  15  Kan.  625. 

§517,    (b)    The  text  is  quoted  in  Cloud,  84  Ohio  St.  272,  35  L.  R.  A. 

Wakefield  v.  Wakefield,  256  111.  296,  (N.  S.)  851,  95  N.  E.  774  (loss  by  the 

Ann.    Cas.    1913E,    414,    100    N.    E.  election  should  fall  on  residuary  es- 

275.     The  text  is  cited  to  this  effect  tate  rather  than  on  specific  devises) ; 

in  Brown   v.   Brown,   42   Minn.   270,  Turner's    Adm'r    v.    Citizens'    Bank, 

44    N.    W.    250;    Pace   v.    Pace,    271  111  Va.   184,   68   S.  E.  407;   Fennell 

111.    114,   110  N.   E.   878;    Cotton   v.  v.    Fennell,    80    Kan.    730,    18    Ann. 

Fletcher,    77    N.    H.    216,   Ann.    Cas.  Cas.  471,  106  Pac.   1038   (if  rest  of 

1915A,  12'25,  90  Atl.  510;  Holdren  v.  -will    cannot    be    enforced    according 

Holdren,  78  Ohio  St.  276,  18  L.  E.  A.  to   the   intent   of   it,   estate   will   be 

(N.  S.)  272,  85  N.  E.  537.     See,  also,  distributed    as    intestate);    Pittman 

Dunshee  v.  Dunshee,  263  lU.  188,  104  v.  Pittman,  81  Kan.  643,  27  L.  R.  A. 

N.  E.  1101;  Bebout  v.  Quick,  81  Ohio  (N.  S.)   602,  and  note,  107  Pac.  235 

St.  196,  90  N.  E.  162;  Dunlap  v.  Mc-  (as  between  other  persons,  the  will 


983  CONCERNING   ELECTION.  §  518 

made  by  widows  in  favor  of  their  dower  and  against  the 
testamentary  provisions,  whereby  the  interests  of  other 
devisees  were  disturbed.  Such  disappointed  devisees  are 
held  entitled  to  compensation  out  of  the  benefits  intended  to 
be  conferred  by  the  will  on  the  widow,  but  which  she  had 
rejected.*^ 

§  518.    Equitable  Jurisdiction  in  Matters  of  Election. — In 

England,  where  the  original  general  jurisdiction  over  the 
administration  of  decedents'  estates  is  still  preserved,  the 
question  of  election  under  the  provisions  of  a  will  usually 
arises  as  an  incident  of  the  administration,  and  thus  comes 
within  the  cognizance  of  the  court  as  a  part  of  or  a  step  in 
the  administration.  In  the  American  states,  the  power  to 
entertain  a  suit  for  the  purpose  of  compelling  an  election 
may,  perhaps,  be  sustained  as  one  of  those  special  matters 
connected  with  administrations  which  have  not  been  sur- 
rendered to  the  statutory  courts  of  probate,  and  which  are 
still  retained  by  courts  of  equity.  AVhether  this  be  so  or 
not,  it  is  well  settled  that,  wholly  independent  of  the  gen- 
eral power  over  administrations,  an  equitable  jurisdiction 
exists  to  entertain  a  suit  on  behalf  of  the  other  parties 
interested  as  beneficiaries  against  the  donee  upon  whom  the 
duty  of  electing  is  imposed  by  the  instrument  of  donation, 
for  the  purpose  of  compelling  him  to  make  an  election. 
The  jurisdiction  to  entertain  such  a  suit  embraces  the  power 
to  determine  whether  the  necessity  for  an  election  exists, 
and  after  the  election  is  actually  made,  to  ascertain,  adjust, 
and  secure  the  rights  of  all  the  parties  interested  which 

will  be  enforced  as  nearly  in  accord-  the  estate  renounced  for  the  contin- 
ance  with  the  intention  of  the  testa-  gent  remaindermen  during  her  life), 
tor  as  it  can  be) ;  Colvert  v.  Wood,  Acceleration  of  Remainders  by 
93  Tenn.  454,  25  S.  W.  963  (com-  widow's  election  against  a  will  giv- 
pensation  to  disappointed  legatees).  ing  her  a  life  estate:  See  Holdren  v. 
§517,  (e)  The  text  is  quoted  in  Holdren,  78  Ohio  St.  276,  18  L.  R.  A. 
Wakefield  v.  Wakefield,  256  111.  296,  (N.  S.)  272,  and  monographic  note, 
Ann.  Cas,  1913E,  414,  100  N.  K  275  85  N.  E.  537;  In  re  Disston's  Estate 
(will  gave  life  estate  to  widow,  with  (Pa.),  101  Atl.  804;  Jones  v.  Knap- 
contingent  remainders  on  her  death;  pen,  63  Vt.  391,  14  L.  R.  A.  293,  22 
court    appointed    a    trustee   to   hold  Atl.  630. 


§  519  EQUITY    JUEISPRUDENCE.  984 

are  affected  by  it,  by  means  of  compensation  or  otherwise. 
This  special  jurisdiction  has  sometimes  been  referred  to 
that  existing  over  trusts,  because,  when  the  election  is  made 
by  the  defendant,  a  trust  in  favor  of  the  plaintiff  is  im- 
pressed upon  the  property  rejected.^ 

§  519.  Conversely,  the  rule  has  been  stated  in  the  most 
general  manner,  that  the  jurisdiction  always  exists,  and 
will  be  exercised,  to  entertain  a  suit  on  behalf  of  the  person 
bound  to  elect,  for  the  purpose  of  having  the  necessary 
accounts  taken,  so  that  he  may  be  informed  of  the  real  value 
and  condition  of  the  property  and  enabled  to  exercise  his 
right  of  election  in  a  proper  manner.  The  latest  English 
decision  on  this  subject,  however,  while  conceding  that  such 
a  jurisdiction  will  be  exercised  under  all  ordinary  circum- 
stances, holds  that  in  certain  special  cases  the  suit  would 
not  be  maintained.!     In  several  of   the  American    states, 

§  518,  1  Many  of  the  cases  heretofore  cited  in  this  section  were  suits  of 
such  a  nature  brought  to  enforce  an  election.  See  Douglas  v.  Douglas, 
L.  R.  12  Eq.  617,  637;  Dillon  v.  Parker,  1  Swanst.  381,  note  by  Mr. 
Swanston;  Van  Dyke's  Appeal,  60  Pa.  St.  481,  489,  per  Sharswood,  J. 

§  519,  1  Dillon  v.  Parker,  1  Swanst.  381,  note  by  Mr.  Swanston ;  But- 
ricke  v.  Broadhurst,  3  Brown  Ch.  88;  1  Ves.  171,  172,  per  Lord  Thurlow; 
Pusey  V.  Desbouverie,  3  P.  Wms.  315;  Douglas  v.  Douglas,  L.  R.  12  Eq. 
617,  637,  per  Wickens,  V.  C.  In  this  last  case,  the  court  said  (p.  637)  : 
"It  is  perhaps  too  broadly  stated  by  Lord  Thurlow,  in  Butricke  v.  Broad- 
hurst, 3  Brown  Ch.  88,  whose  dictum  has  been  adopted  by  Mr.  Swanston 
in  his  note  to  Dillon  v.  Parker,  1  Swanst.  381,  that  the  court  of  chancei-y 
will  in  all  eases  entertain  a  suit  by  a  person  put  to  an  election  to  ascer- 
tain the  value  of  the  objects  between  which  election  is  to  be  made.  No 
doubt  there  is,  in  almost  all  cases,  jurisdiction  in  equity  to  compel  a  final 
election,  so  as  to  quiet  the  title  of  those  interested  in  the  objects  of  which 
one  is  to  be  chosen ;  and  the  court,  as  a  condition  of  compelling  such  a 
final  election,  secures  to  the  person  compelled  to  make  it  all  the  informa- 
tion necessai-y  to  guide  him  in  doing  so.  It  is  also  generally,  though  per- 
haps not  universally,  true  that  a  person  for  whose  benefit  conditions  will 
be  imposed  by  the  court  before  it  makes  an  order  against  him  can  entitle 
himself  to  the  benefit  of  the  conditions  by  filing  a  bill  and  offering  by  it 
to  submit  to  the  order."  So  far  as  these  remarks  tend  to  restrict  the 
jurisdiction,  they  are  confessedly  a  mere  dictum,  not  at  all  necessai-y  to 
the  actual  decision  made  in  the  case. 


985  CONCERNING   ELECTION.  §  519 

where  the  general  doctrines  of  equity  concerning  the  elec- 
tion by  widows  between  their  dower  and  a  testamentary 
provision  have  been  greatly  modified  by  statute,  and  defi- 
nite statutory  rules  have  been  substituted  in  their  stead,  as 
shown  in  a  previous  paragraph,  the  courts  of  pro1)ate  have 
jurisdiction  to  determine  all  such  matters  of  election,  and 
to  decide  upon  the  rights  of  widows  and  other  parties  inter- 
ested, in  the  ordinary  proceedings  for  administering,  set- 
tling, and  distributing  the  estate,  or  in  the  proceedings  for 
assigning  the  widow's  dower.  This  purely  statutory  juris- 
diction does  not,  however,  seem  to  embrace  other  and  more 
general  cases  calling  for  an  election. 


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